PCA LLC, PCA Finance Corp., THE GUARANTORS named herein and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee INDENTURE Dated as of July 15, 2005 14% Senior Secured Notes Due 2009
Exhibit 4.12
PCA
LLC,
PCA
Finance Corp.,
THE
GUARANTORS named herein
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee
______________________
INDENTURE
Dated
as
of July 15, 2005
________________________
14%
Senior
Secured Notes Due 2009
CROSS-REFERENCE
TABLE
TIA
Section
|
Indenture
Section
|
310 (a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
N.A.
|
(a)(4)
|
N.A.
|
(a)(5)
|
N.A.
|
(b)
|
7.08;
7.10; 11.02
|
(b)(1)
|
7.10
|
(c)
|
N.A.
|
311 (a)
|
7.11
|
(b)
|
7.11
|
(c)
|
N.A.
|
312 (a)
|
2.06
|
(b)
|
11.03
|
(c)
|
11.03
|
313 (a)
|
7.06
|
(b)(1)
|
N.A.
|
(b)(2)
|
7.06
|
(c)
|
7.06;
11.02
|
(d)
|
7.06
|
314 (a)
|
4.06;
4.18; 11.02
|
(b)
|
N.A.
|
(c)(1)
|
11.04
|
(c)(2)
|
11.04
|
(c)(3)
|
N.A.
|
(d)
|
N.A.
|
(e)
|
11.05
|
(f)
|
N.A.
|
315 (a)
|
7.01(b)
|
(b)
|
7.05;
11.02
|
(c)
|
7.01(a)
|
(d)
|
7.01(c)
|
(e)
|
6.12
|
316 (a)
(last sentence)
|
2.10
|
(a)(1)(A)
|
6.05
|
(a)(1)(B)
|
6.04
|
(a)(2)
|
N.A.
|
(b)
|
6.08
|
(c)
|
8.04
|
317 (a)(1)
|
6.09
|
(a)(2)
|
6.10
|
(b)
|
2.05;
7.12
|
318 (a)
|
11.01
|
_______________________
N.A.
means Not Applicable
Note: This
Cross-Reference Table shall not, for any purpose, be deemed to be a part of
this
Indenture
PAGE
|
||
ARTICLE
ONE
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
1
|
SECTION
1.01.
|
Definitions
|
1
|
SECTION
1.02.
|
Incorporation
by Reference of Trust Indenture Act
|
27
|
SECTION
1.03.
|
Rules
of Construction
|
28
|
ARTICLE
TWO
|
THE
NOTES
|
28
|
SECTION
2.01.
|
Amount
of Notes
|
28
|
SECTION
2.02.
|
Form
and Dating
|
28
|
SECTION
2.03.
|
Execution
and Authentication
|
29
|
SECTION
2.04.
|
Registrar
and Paying Agent
|
29
|
SECTION
2.05.
|
Paying
Agent To Hold Money in Trust
|
30
|
SECTION
2.06.
|
Noteholder
Lists
|
30
|
SECTION
2.07.
|
Transfer
and Exchange
|
30
|
SECTION
2.08.
|
Replacement
Notes
|
31
|
SECTION
2.09.
|
Outstanding
Notes
|
31
|
SECTION
2.10.
|
Treasury
Notes
|
32
|
SECTION
2.11.
|
Temporary
Notes
|
32
|
SECTION
2.12.
|
Cancellation
|
32
|
SECTION
2.13.
|
Defaulted
Interest
|
33
|
SECTION
2.14.
|
CUSIP
Number
|
33
|
SECTION
2.15.
|
Deposit
of Moneys
|
33
|
SECTION
2.16.
|
Book-Entry
Provisions for Global Notes
|
33
|
SECTION
2.17.
|
Special
Transfer Provisions
|
35
|
SECTION
2.18.
|
Computation
of Interest
|
37
|
ARTICLE
THREE
|
REDEMPTION
|
37
|
SECTION
3.01.
|
Election
To Redeem; Notices to Trustee
|
37
|
SECTION
3.02.
|
Selection
by Trustee of Notes To Be Redeemed
|
37
|
SECTION
3.03.
|
Notice
of Redemption
|
38
|
SECTION
3.04.
|
Effect
of Notice of Redemption
|
38
|
SECTION
3.05.
|
Deposit
of Redemption Price
|
39
|
SECTION
3.06.
|
Notes
Redeemed in Part
|
39
|
ARTICLE
FOUR
|
COVENANTS
|
39
|
SECTION
4.01.
|
Payment
of Notes
|
39
|
SECTION
4.02.
|
Maintenance
of Office or Agency
|
40
|
SECTION
4.03.
|
Legal
Existence
|
40
|
SECTION
4.04.
|
Maintenance
of Properties; Insurance; Compliance with Law
|
40
|
SECTION
4.05.
|
Waiver
of Stay, Extension or Usury Laws
|
41
|
SECTION
4.06.
|
Compliance
Certificate
|
41
|
SECTION
4.07.
|
Taxes
|
42
|
SECTION
4.08.
|
Repurchase
at the Option of Holders upon Change of Control
|
42
|
SECTION
4.09.
|
Limitation
on Incurrence of Additional Indebtedness
|
43
|
SECTION
4.10.
|
Limitation
on Restricted Payments
|
44
|
SECTION
4.11.
|
Limitation
on Liens
|
45
|
SECTION
4.12.
|
Limitation
on Asset Sales
|
45
|
SECTION
4.13.
|
Limitation
on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
|
49
|
SECTION
4.14.
|
Limitation
on Transactions with Affiliates
|
50
|
SECTION
4.15.
|
Limitation
on Sale and Leaseback Transactions
|
51
|
SECTION
4.16.
|
Additional
Note Guarantees
|
52
|
SECTION
4.17.
|
Conduct
of Business
|
52
|
SECTION
4.18.
|
Reports
to Holders
|
52
|
SECTION
4.19.
|
Impairment
of Security Interest
|
53
|
SECTION
4.20.
|
Real
Estate Mortgages and Filings
|
53
|
SECTION
4.21.
|
Limitation
of Prepayment of Qualified Vendor Payables
|
54
|
ARTICLE
FIVE
|
SUCCESSOR
CORPORATION
|
54
|
SECTION
5.01.
|
Merger,
Consolidation and Sale of Assets
|
54
|
SECTION
5.02.
|
Successor
Person Substituted
|
56
|
ARTICLE
SIX
|
DEFAULTS
AND REMEDIES
|
56
|
SECTION
6.01.
|
Events
of Default
|
56
|
SECTION
6.02.
|
Acceleration
of Maturity; Rescission
|
59
|
SECTION
6.03.
|
Other
Remedies
|
59
|
SECTION
6.04.
|
Waiver
of Past Defaults and Events of Default
|
60
|
SECTION
6.05.
|
Control
by Majority
|
60
|
SECTION
6.06.
|
Limitation
on Suits
|
60
|
SECTION
6.07.
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders.
|
60
|
SECTION
6.08.
|
Rights
of Holders To Receive Payment
|
61
|
SECTION
6.09.
|
Collection
Suit by Trustee
|
61
|
SECTION
6.10.
|
Trustee
May File Proofs of Claim
|
61
|
SECTION
6.11.
|
Priorities
|
62
|
SECTION
6.12.
|
Undertaking
for Costs
|
62
|
ARTICLE
SEVEN
|
TRUSTEE
|
62
|
SECTION
7.01.
|
Duties
of Trustee
|
62
|
SECTION
7.02.
|
Rights
of Trustee
|
64
|
SECTION
7.03.
|
Individual
Rights of Trustee
|
65
|
SECTION
7.04.
|
Trustee’s
Disclaimer
|
65
|
SECTION
7.05.
|
Notice
of Defaults
|
65
|
SECTION
7.06.
|
Reports
by Trustee to Holders
|
65
|
SECTION
7.07.
|
Compensation
and Indemnity
|
66
|
SECTION
7.08.
|
Replacement
of Trustee
|
67
|
SECTION
7.09.
|
Successor
Trustee by Consolidation, Merger, etc
|
68
|
SECTION
7.10.
|
Eligibility;
Disqualification
|
68
|
SECTION
7.11.
|
Preferential
Collection of Claims Against Company
|
68
|
SECTION
7.12.
|
Paying
Agents
|
68
|
ARTICLE
EIGHT
|
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
69
|
SECTION
8.01.
|
Without
Consent of Noteholders
|
69
|
SECTION
8.02.
|
With
Consent of Noteholders
|
69
|
SECTION
8.03.
|
Compliance
with Trust Indenture Act
|
71
|
SECTION
8.04.
|
Revocation
and Effect of Consents
|
71
|
SECTION
8.05.
|
Notation
on or Exchange of Notes
|
71
|
SECTION
8.06.
|
Trustee
To Sign Amendments, etc
|
72
|
ARTICLE
NINE
|
DISCHARGE
OF INDENTURE; DEFEASANCE
|
72
|
SECTION
9.01.
|
Discharge
of Indenture
|
72
|
SECTION
9.02.
|
Legal
Defeasance
|
73
|
SECTION
9.03.
|
Covenant
Defeasance
|
74
|
SECTION
9.04.
|
Conditions
to Defeasance or Covenant Defeasance
|
74
|
SECTION
9.05.
|
Deposited
Money and U.S. Government Obligations To Be Held in Trust; Other
Miscellaneous Provisions.
|
76
|
SECTION
9.06.
|
Reinstatement
|
76
|
SECTION
9.07.
|
Moneys
Held by Paying Agent
|
76
|
SECTION
9.08.
|
Moneys
Held by Trustee
|
77
|
ARTICLE
TEN
|
GUARANTEE
OF NOTES
|
77
|
SECTION
10.01.
|
Guarantee
|
77
|
SECTION
10.02.
|
Execution
and Delivery of Guarantee
|
78
|
SECTION
10.03.
|
Limitation
of Guarantee
|
79
|
SECTION
10.04.
|
Additional
Guarantors
|
79
|
SECTION
10.05.
|
Release
of Guarantors
|
79
|
SECTION
10.06.
|
Waiver
of Subrogation
|
80
|
SECTION
10.07.
|
Notice
to Trustee
|
80
|
ARTICLE
ELEVEN
|
MISCELLANEOUS
|
81
|
SECTION
11.01.
|
Trust
Indenture Act Controls
|
81
|
SECTION
11.02.
|
Notices
|
81
|
SECTION
11.03.
|
Communications
by Holders with Other Holders
|
82
|
SECTION
11.04.
|
Certificate
and Opinion as to Conditions Precedent
|
82
|
SECTION
11.05.
|
Statements
Required in Certificate and Opinion
|
82
|
SECTION
11.06.
|
Rules
by Trustee and Agents
|
83
|
SECTION
11.07.
|
Business
Days; Legal Holidays
|
83
|
SECTION
11.08.
|
Governing
Law
|
83
|
SECTION
11.09.
|
No
Adverse Interpretation of Other Agreements
|
83
|
SECTION
11.10.
|
Successors
|
83
|
SECTION
11.11.
|
Multiple
Counterparts
|
84
|
SECTION
11.12.
|
Table
of Contents, Headings, etc
|
84
|
SECTION
11.13.
|
Separability
|
84
|
ARTICLE
TWELVE
|
SECURITY
|
84
|
SECTION
12.01.
|
Grant
of Security Interest
|
84
|
SECTION
12.02.
|
Recording
and Opinions
|
85
|
SECTION
12.03.
|
Release
of Collateral
|
85
|
SECTION
12.04.
|
Specified
Releases of Collateral
|
86
|
SECTION
12.05.
|
Release
upon Satisfaction or Defeasance of All Outstanding
Obligations
|
87
|
SECTION
12.06.
|
Form
and Sufficiency of Release
|
88
|
SECTION
12.07.
|
Purchaser
Protected
|
88
|
SECTION
12.08.
|
Authorization
of Actions to be Taken by the Collateral Agent Under the Collateral
Agreements
|
88
|
SECTION
12.09.
|
Authorization
of Receipt of Funds by the Trustee Under the Collateral
Agreements
|
89
|
SECTION
12.10.
|
Intercreditor
Agreements
|
89
|
|
|
|
|
||
|
||
EXHIBITS
|
||
Exhibit
A.
|
Form
of Note
|
A-1
|
Exhibit
B.
|
Form
of Legend for Rule 144A Notes and Other Notes
|
|
|
That
Are Restricted Notes
|
B-1
|
Exhibit
C.
|
Form
of Legend for Regulation S Note
|
C-1
|
Exhibit
D.
|
Form
of Legend for Global Note
|
D-1
|
Exhibit
E.
|
Form
of Certificate To Be Delivered in Connection with
|
|
|
Transfers
to Non-QIB Accredited Investors
|
E-1
|
Exhibit
F.
|
Form
of Certificate To Be Delivered in Connection with
|
|
|
Transfers
Pursuant to Regulation S
|
F-1
|
Exhibit
G.
|
Form
of Guarantee
|
G-1
|
-i-
|
INDENTURE,
dated as of July 15, 2005, among PCA LLC, a Delaware limited liability company,
as issuer (the “Company”
or
“PCA”),
PCA
Finance Corp., a Delaware corporation, as co-issuer (“PCA
Finance”
and,
collectively with the Company, the “Issuers”),
the
Guarantors (as hereinafter defined) and THE BANK OF NEW YORK TRUST COMPANY,
N.A., a New York banking corporation, as trustee (the “Trustee”).
Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders of the Notes.
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION 1.01. |
Definitions.
|
“Affiliate”
means,
with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by,
or
is under common control with, such specified Person. The term “control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative of the
foregoing.
“Affiliate
Transaction”
has the
meaning set forth under Section
4.14.
“Agent”
means
any Registrar, Paying Agent, or agent for service or notices and
demands.
“Agent
Members”
has the
meaning set forth under Section
2.16.
“AGFA
Subordination Agreement”
means
the Subordination Agreement dated as of July 15, 2005 between the Trustee and
AgfaPhoto USA Corporation.
“Alternate
Offer”
has the
meaning set forth under Section
4.08(e).
“amend”
means
amend, modify, supplement, restate or amend and restate, including successively;
and “amending” and “amended” have correlative meanings.
“asset”
means
any asset or property, whether real, personal or other, tangible or
intangible.
“Asset
Acquisition”
means
(a) an Investment by the Company or any of its Subsidiaries in any other Person
pursuant to which such Person shall become a Subsidiary of the Company or shall
be merged with or into the Company or any of its Subsidiaries, or (b) the
acquisition, other than in the ordinary course of business, by the Company
or
any of its Subsidiaries of the assets of any Person (other than a Subsidiary
of
the Company) which constitute all or substantially all of the assets of such
Person or comprise any division or line of business of such Person or any other
assets of such Person.
1
“Asset
Sale”
means
any Event of Loss and any Transfer by the Company or any of its Subsidiaries
to
any Person other than the Company or any Subsidiary of (x) any Capital Stock
of
any Subsidiary of the Company; or (y) any other assets of the Company or any
of
its Subsidiaries other than in the ordinary course of business; provided,
however,
that
Asset Sales shall not include
(1) |
a
transaction or series of related transactions for which the Company
and
its Subsidiaries receive aggregate consideration of less than $1.0
million;
|
(2) |
sales
or grants of licenses to use the patents, trade secrets, know-how
and
other intellectual property of the Company or any of its Subsidiaries
to
the extent that such license does not prohibit the Company or any
of its
Subsidiaries from using the technologies licensed and does not require
the
Company or any of its Subsidiaries to pay any fees for any such
use;
|
(3) |
a
Transfer (a) of all or substantially all of the assets of the Company
as
permitted under Section
5.01,
(b) pursuant to any foreclosure of assets or other remedy provided
by
applicable law, to a creditor of the Company or any of its Subsidiaries
with a Lien on such assets, which Lien is permitted under this Indenture,
(c) involving only cash or Cash Equivalents or involving any asset
of the
Company or any of its Subsidiaries that in the reasonable judgment
of the
Company, has become damaged, obsolete or worn out and is sold in
a manner
that is consistent with past practices of the Company and its Subsidiaries
or (d) including only the lease or sublease of any real or personal
property in the ordinary course of business;
|
(4) |
the
making of any Permitted Investment or any Restricted Payment permitted
by
the terms of this Indenture;
|
(5) |
the
surrender or waiver of contract rights or the settlement, release
or
surrender of contract, tort or other claims of any kind;
|
(6) |
granting
of Liens not prohibited by this Indenture;
and
|
(7) |
any
Transfer in connection with the exercise of remedies by the lenders
under
the Credit Agreement or Letters of Credit
Facility.
|
“Attributable
Indebtedness,”
when
used with respect to any Sale and Leaseback Transaction, means, as at the time
of determination, the present value (discounted at a rate equivalent to the
Company’s then current weighted average cost of funds for borrowed money as at
the time of determination, compounded on a semiannual basis) of the total
obligations of the lessee for net rental payments during the remaining term
of
the lease included in any such Sale and Leaseback Transaction.
“Bankruptcy
Law”
means
Title 11 of the United States Code entitled “Bankruptcy” or any other law
relating to bankruptcy, insolvency, winding up, liquidation, reorganization
or
relief of debtors, whether in effect on the date hereof or
hereafter.
2
“Beneficial
Owner”
has the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
Act. For the purposes of this definition, the term “Beneficially Own” shall have
a correlative meaning.
“Board
of Directors”
means
(1) as to any Person that is a corporation, the board of directors of such
Person or any duly authorized committee thereof and (2) as to any other Person,
the functionally comparable body of such Person or any duly authorized committee
thereof.
“Business
Day”
or
“business day” has the meaning set forth under Section
11.07.
“Capital
Stock”
means
(a) with respect to any Person that is a corporation, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, including each class of Common Stock and
Preferred Stock of such Person and (b) with respect to any Person that is not
a
corporation, any and all partnership, membership or other equity interests
of
such Person.
“Capitalized
Lease Obligation”
means,
as to any Person, the obligations of such Person under a lease (or other
agreement conveying the right to use an asset) that are required to be
classified and accounted for as capital lease obligations under GAAP and, for
purposes of this definition, the amount of such obligations at any date shall
be
the capitalized amount of such obligations at such date, determined in
accordance with GAAP.
“Cash
Equivalents”
means:
(1) |
a
marketable obligation, maturing within one year after issuance thereof,
issued or guaranteed by the United States of America or an instrumentality
or agency thereof;
|
(2) |
a
certificate of deposit or banker’s acceptance, maturing within one year
after issuance thereof, issued by any lender under the Credit Agreement,
or a U.S. national or state bank or trust company or a European,
Canadian
or Japanese bank, in each case having capital, surplus and undivided
profits of at least $500.0 million and whose long-term unsecured
debt has
a rating of “A” or better by S&P or A2 or better by Xxxxx’x or the
equivalent rating by any other nationally recognized rating agency
(provided,
that the aggregate face amount of all Investments in certificates
of
deposit or bankers’ acceptances issued by the principal offices of or
branches of such European or Japanese banks located outside the United
States shall not at any time exceed 33 1/3% of all Investments described
in this definition);
|
(3) |
open
market commercial paper, maturing within 270 days after issuance
thereof,
which has a rating of A2 or better by S&P or P2 or better by Xxxxx’x
or the equivalent rating by any other nationally recognized rating
agency;
|
(4) |
repurchase
agreements and reverse repurchase agreements with a term not in excess
of
one year with any financial institution which has been elected primary
government securities dealers by the Federal Reserve Board or whose
securities are rated AA or better by S&P or Aa3 or better by Xxxxx’x
or the equivalent rating by any other nationally recognized rating
agency
relating to marketable direct obligations issued or unconditionally
guaranteed by the United States of America or any agency or
instrumentality thereof and backed by the full faith and credit of
the
United States of America; and
|
3
(5) |
shares
of any money market mutual fund rated at least AAA or the equivalent
thereof by S&P or at least Aaa or the equivalent thereof by Xxxxx’x or
any other mutual fund holding assets consisting (except for de minimis
amounts) of the type specified in clauses
(1)
through (4)
above.
|
“Change
of Control”
means
the occurrence of the following:
(1) |
prior
to the Initial Public Offering, the Permitted Holders, in the aggregate,
do not Beneficially Own Capital Stock of Parent representing more
than 50%
of all voting power of the Voting Stock of Parent;
or
|
(2) |
the
consummation of any transaction (including, without limitation, any
merger
or consolidation) the result of which is that any “person” or “group” (as
defined in Sections 13(d) and 14(d) of the Exchange Act), other than
the
Permitted Holders, becomes the Beneficial Owner, directly or indirectly,
of Capital Stock of Parent representing more than 35% of all voting
power
of the Voting Stock of Parent, and the Permitted Holders, in the
aggregate, Beneficially Own Capital Stock of Parent representing
a lesser
percentage of such voting power than the Capital Stock Beneficially
Owned,
directly or indirectly, by such “person” or “group;”
or
|
(3) |
Parent
consolidates with, or merges with or into, any Person (other than
a
Permitted Holder) or Transfers all or substantially all of the assets
of
Parent and its Subsidiaries taken as a whole to any Person (other
than a
Permitted Holder), or any Person (other than a Permitted Holder)
consolidates with, or merges with or into, Parent, other than any
such
transaction where the Voting Stock of Parent outstanding immediately
prior
to such transaction constitutes, or is converted into or exchanged
for
Voting Stock (other than Disqualified Capital Stock) of the surviving
or
Transferee Person constituting, a majority of the outstanding shares
of
the Voting Stock of Parent or such surviving or Transferee Person
immediately after giving effect to such issuance;
or
|
(4) |
the
first day on which a majority of the members of the board of directors
of
the Company are not Continuing Directors;
or
|
(5) |
the
adoption of a plan relating to the liquidation or dissolution of
the
Company; or
|
(6) |
Parent
ceases to own, of record or beneficially, all of the Equity Interests
of
the Company; or the Company ceases to own, of record or beneficially,
all
of the Equity Interests of PCA Finance;
or
|
(7) |
a
change of control shall occur under the Parent Senior Subordinated
Discount Notes, the Opco Senior Subordinated Notes or the Opco Senior
Notes.
|
4
“Change
of Control Offer”
has the
meaning set forth under Section
4.08(a).
“Change
of Control Payment”
has the
meaning set forth under Section
4.08(a).
“Change
of Control Payment Date”
has the
meaning set forth under Section
4.08(a).
“Clearstream”
has the
meaning set forth under Section
2.16.
“Collateral”
means
all property and assets, whether now owned or hereafter acquired in which Liens
are granted to secure the Obligations under the Notes pursuant to the Security
Agreement, all owned property mortgaged under the Mortgages and any other
property or assets, whether now owned or hereafter acquired, upon which a Lien
securing the Obligations under the Notes and the Indenture is granted or
purported to be granted under any Collateral Agreement.
“Collateral
Agent”
means
the Trustee, acting as the collateral agent under the Collateral Agreements
and
any successor.
“Collateral
Agreements”
means,
collectively, the Intercreditor Agreement, the AGFA Subordination Agreement,
the
Security Agreement and each Mortgage, in each case, as the same may be amended,
modified, supplemented and in force from time to time.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
of any
Person means any and all shares, interests or other participations in, and
other
equivalents (however designated and whether voting or nonvoting) of such
Person’s common stock, whether outstanding on the Issue Date or issued
thereafter, and includes, without limitation, all series and classes of such
common stock.
“Company”
means
the party named as such in the first paragraph of this Indenture until a
successor replaces such party pursuant to Article Five and thereafter means
the
successor.
“Company
Request”
means
any written request signed in the name of the Issuers by the Chairman of the
Board of Directors, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Treasurer of each of the Issuers
and attested to by the Secretary or any Assistant Secretary of each of the
Issuers.
“Consolidated
EBITDA”
means,
with respect to any Person, for any period, the sum (without duplication)
of
(1) |
Consolidated
Net Income, and
|
(2) |
to
the extent Consolidated Net Income has been reduced thereby, (a)
all
income taxes of such Person and its Subsidiaries paid or accrued
in
accordance with GAAP for such period (other than income taxes attributable
to extraordinary gains or losses or income taxes attributable to
Asset
Sales and other sales or dispositions outside the ordinary course
of
business to the extent that gains or losses from such transactions
have
been excluded from the computation of Consolidated Net Income) and
Tax
Distributions made in respect of such period made pursuant to Section
4.10(2), (b) Consolidated Interest Expense and (c) Consolidated Non-cash
Charges less any non-cash items increasing Consolidated Net Income
for
such period (except to the extent such non-cash item increasing
Consolidated Net Income relates to a cash benefit for any future
period).
|
5
all
as
determined on a consolidated basis for such Person and its Subsidiaries in
accordance with GAAP. Consolidated EBITDA shall be calculated after giving
effect on a pro forma basis in accordance with Regulation S-X under the Exchange
Act to any Asset Sales and other asset sales or divestitures outside the
ordinary course of business or Asset Acquisitions (including any Asset
Acquisition giving rise to the need to make such calculation) occurring during
the Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such asset
sale or Asset Acquisition occurred on the first day of the Four-Quarter
Period.
“Consolidated
Fixed Charge Coverage Ratio”
means,
with respect to any Person, the ratio of (x) Consolidated EBITDA of such Person
during the Four-Quarter Period to (y) Consolidated Fixed Charges of such Person
for the Four-Quarter Period.
“Consolidated
Fixed Charges”
means,
with respect to any Person for any period, the sum, without duplication,
of
(1) |
Consolidated
Interest Expense, plus
|
(2) |
the
product of (x) the amount of all dividend payments on any series
of
Preferred Stock of such Person and its Subsidiaries (other than dividends
paid in Qualified Capital Stock and other than dividends paid to
such
Person or to a Subsidiary of such Person) paid, accrued or scheduled
to be
paid or accrued during such period times (y) a fraction, the numerator
of
which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local tax rate of such
Person,
expressed as a decimal; provided,
that, if the cash dividend or distribution on the Preferred Stock
is
deductible for federal tax purposes, then the fraction shall be equal
to
one,
|
provided,
that
Consolidated Fixed Charges shall not include gain or loss from the
extinguishment of debt, including, without limitation, write-off of debt
issuance costs, commissions, fees and expenses.
6
Consolidated
Fixed Charges shall be calculated after giving effect on a pro
forma
basis in
accordance with Regulation S-X under the Exchange Act to the incurrence,
repayment or redemption of any Indebtedness or Preferred Stock of such Person
or
any of its Subsidiaries giving rise to the need to make such calculation and
any
incurrence, repayment or redemption of other Indebtedness or Preferred Stock
(other than the incurrence, repayment or redemption of Indebtedness or Preferred
Stock in the ordinary course of business for working capital purposes pursuant
to working capital facilities) occurring during the Four-Quarter Period or
at
any time subsequent to the last day of the Four-Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment, as the case may
be,
occurred on the first day of the Four-Quarter Period. In calculating
Consolidated Fixed Charges for purposes of determining the denominator (but
not
the numerator) of the “Consolidated Fixed Charge Coverage Ratio,”
(1) |
interest
on outstanding Indebtedness determined on a fluctuating basis (after
giving effect to any Interest Swap Obligations) as of the Transaction
Date
and which will continue to be so determined thereafter shall be deemed
to
have accrued at a fixed rate per annum equal to the weighted average
rate
of interest during the Four-Quarter
Period;
|
(2) |
if
interest on any Indebtedness actually incurred on the Transaction
Date may
optionally be determined at an interest rate based upon a factor
of a
prime or similar rate, a eurocurrency-interbank offered rate, or
other
rates, then the interest rate in effect on the Transaction Date will
be
deemed to have been in effect during the Four-Quarter 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
Swap
Obligations, shall be deemed to accrue at the rate per annum during
the
Four-Quarter Period resulting after giving effect to the operation
of such
agreements.
|
“Consolidated
Interest Expense”
means,
with respect to any Person for any period, the sum of, without
duplication:
(1) |
the
aggregate of the interest expense of such Person and its Subsidiaries
for
such period determined on a consolidated basis in accordance with
GAAP,
including without limitation, (a) any amortization of debt discount
and
amortization or write-off of deferred financing costs, excluding
(x) the
write-off of deferred financing costs as a result of the prepayments
of
Indebtedness and (y) the amortization of deferred financing costs,
(b) the
net costs under Interest Swap Obligations, (c) all capitalized interest
and (d) the interest portion of any deferred payment
obligation;
|
(2) |
the
interest component of Capitalized Lease Obligations and Attributable
Indebtedness paid, accrued and/or scheduled to be paid or accrued
by such
Person and its Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP;
and
|
7
(3) |
all
interest on any Indebtedness of the type described in clause
(10)
or
(11)
of
the definition of “Indebtedness.”
|
“Consolidated
Net Income”
means,
with respect to any Person, for any period, the net income (or loss) of such
Person and its Subsidiaries for such period on a consolidated basis, determined
in accordance with GAAP; provided,
that
there shall be excluded from such net income (loss), to the extent otherwise
included therein, without duplication:
(1) |
after
tax gains on Asset Sales or other losses on asset sales outside the
ordinary course of business or abandonments or reserves relating
thereto;
|
(2) |
after
tax extraordinary gains or extraordinary losses determined in accordance
with GAAP;
|
(3) |
the
net income (but not loss) of any Subsidiary of the Person to the
extent
that the declaration of dividends or similar distributions by that
Subsidiary of that income is
restricted;
|
(4) |
the
net income or loss of any Person that is not a Subsidiary of that
Person
except to the extent of cash dividends or distributions paid to such
Person or to a wholly owned Subsidiary of that
Person;
|
(5) |
any
restoration to income of any contingency reserve, except to the extent
that provision for such reserve was made out of Consolidated Net
Income
accrued at any time following the Issue
Date;
|
(6) |
the
net income of any Person earned prior to the date it becomes a Subsidiary
of the Person or is merged or consolidated with the Person or any
Subsidiary of the Person;
|
(7) |
in
the case of a successor to the Person by consolidation or merger
or as a
Transferee of the referent Person’s assets, any earnings of the successor
corporation prior to such consolidation, merger or Transfer of
assets;
|
(8) |
gains
or losses from the cumulative effect of any change in accounting
principles prior to the Issue Date;
|
(9) |
the
write-off of deferred financing costs as a result of the prepayments
of
Indebtedness; and
|
(10) |
the
amount of dividends and distributions made pursuant to Section
4.10.
|
“Consolidated
Non-cash Charges”
means,
with respect to any Person, for any period, the sum of
(1) |
depreciation,
amortization and other non-cash expenses or charges of such Person
and its
Subsidiaries for such period;
|
(2) |
unrealized
gains and losses from hedging and foreign currency translations and
transactions of such Person and its Subsidiaries for such period;
and
|
(3) |
unrealized
gains and losses of such Person and its Subsidiaries recognized in
such
period pursuant to Statement of Financial Accounting Standards No.
133,
“Accounting for Derivative Instruments and Hedging Activities,” or any
successor thereto, solely in respect of Qualified Capital
Stock,
|
8
all
determined on a consolidated basis in accordance with GAAP, excluding (x) in
the
case of clause
(1)
or
(2),
any
such item constituting an extraordinary item or extraordinary loss or any such
item that requires an accrual of or a reserve for cash charges for any future
period and (y) in the case of clause
(3),
any
such item that requires an accrual of or a reserve for cash charges for any
future period ending on or prior to the final maturity of the
Notes.
“Continuing
Directors”
means,
as of any date of determination, any member of the board of directors of Parent
who (a) was a member of such board of directors on the Issue Date or (b) was
nominated for election or elected to such board of directors with the approval
of a majority of the Continuing Directors who were members of such board at
the
time of such nomination or election.
“Corporate
Trust Office”
means
the office of the Trustee at which at any particular time its corporate trust
business shall be principally administered, which office as of the date hereof
is listed in Section
11.02.
“Covenant
Defeasance”
has the
meaning set forth under Section
9.03.
“Credit
Agreement”
means
the Credit Agreement dated on or about the Issue Date, by and among the Company,
as borrower, Parent and certain of the Company’s subsidiaries, as guarantors or
co-borrowers, Xxxxx Fargo Foothill, Inc., as administrative agent, and the
lenders named therein, including any notes, guarantees, collateral and security
documents, instruments and agreements executed in connection therewith, and
in
each case as amended or Refinanced from time to time, including any agreement
or
agreements extending the maturity of, Refinancing, replacing or otherwise
restructuring all or any portion of the Indebtedness under such agreement,
and
any successor or replacement agreement or agreements with the same or any other
agents, creditor, lender or group of creditors or lenders.
“Currency
Agreement”
means,
with respect to any Person, any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect such
Person or any of its Subsidiaries against fluctuations in currency
values.
“Default”
means
an event or condition the occurrence of which is, or with the lapse of time
or
the giving of notice or both would be, an Event of Default.
“Depository”
means,
with respect to the Notes issued in the form of one or more Global Notes, The
Depository Trust Company or another Person designated as Depository by the
Company, which Person must be a clearing agency registered under the Exchange
Act.
9
“Disinterested
Member”
means,
with respect to any transaction or series of related transactions, a member
of
the Board of Directors of the Company who (1) does not have any material direct
or indirect financial interest in or with respect to such transaction or series
of related transactions and (2) is not an Affiliate, officer, director or an
employee of any person (other than the Company or any Subsidiary) who has any
direct or indirect financial interest in or with respect to such transaction
or
series of related transactions.
“Disqualified
Capital Stock”
means
any class or series of Capital Stock of any Person that by its terms or
otherwise is:
(1) |
required
to be redeemed or is redeemable at the option of the holder of such
class
or series of Capital Stock at any time on or prior to the date that
is 91
days after the Stated Maturity of the principal of the Notes;
or
|
(2) |
convertible
into or exchangeable at the option of the holder thereof for Capital
Stock
referred to in clause
(1)
above or Indebtedness having a scheduled maturity on or prior to
the date
that is 91 days after the Stated Maturity of the principal of the
Notes.
|
Notwithstanding
the preceding sentence, any Capital Stock that would constitute Disqualified
Capital Stock solely because the holders of the Capital Stock have the right
to
require the issuer thereof to repurchase such Capital Stock upon the occurrence
of a “change of control” or “asset sale” will not constitute Disqualified
Capital Stock if such requirement only becomes operative after compliance with
such terms applicable to the Notes, including the purchase of any Notes tendered
pursuant thereto.
“Domestic
Subsidiary”
means
any Subsidiary of the Company that is not a Foreign Subsidiary.
“Euroclear”
has the
meaning set forth under Section
2.16.
“Event
of Default”
has the
meaning set forth in Section
6.01.
“Event
of Loss”
means,
with respect to any property or asset (tangible or intangible, real or personal)
of the Issuer or any Subsidiary, any of the following: (1) any loss,
destruction or damage of such property or asset; (2) any actual
condemnation, seizure or taking by exercise of the power of eminent domain
or
otherwise of such property or asset, or confiscation of such property or asset
or the requisition of the use of such property or asset; or (3) any
settlement in lieu of clause (2) above.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any successor statute or
statutes thereto.
“Excluded
Assets”
means
(i) Excluded Contracts, (ii) Excluded Equipment, (iii) the assets
of
any Foreign Subsidiary, (iv) real property not required to be mortgaged
pursuant to Section
4.20,
(v) 35%
of the Voting Stock of Foreign Subsidiaries directly owned by either of the
Issuers or any Guarantor and (vi) proceeds and products from any and
all of
the foregoing unless such proceeds or products would otherwise constitute
Collateral.
10
“Excluded
Contract”
means
at any date any rights or interest of the Issuers or any Guarantor in, to or
under any agreement, contract, license, instrument, document or other general
intangible (referred to solely for purposes of this definition as a “Contract”)
(i) to the extent that such Contract by the express terms of a valid
and
enforceable restriction in favor of a Person who is not an Issuer or any
Guarantor or any Affiliate thereof, or any requirement of law, prohibits, or
requires any consent or establishes any other condition for, an assignment
thereof or a grant of a security interest therein by the Issuers or a Guarantor,
(ii) which restriction will not, after commercially reasonable efforts
by
the Issuers and such Guarantor, as the case may be, be waived, or which consent
or other condition cannot, after commercially reasonable efforts by the Issuers
and such Guarantor, as the case may be, be obtained or satisfied and
(iii) with respect to which a contravention or other violation caused
or
arising by its inclusion as Collateral could reasonably be expected to have
a
material adverse effect on the Parent and its Subsidiaries, taken as a whole,
or
individually or collectively is not material to the conduct of the business
of
the Issuers or such Guarantor; provided
that:
(x) rights to payment under any such Contract otherwise constituting
an
Excluded Contract by virtue of this definition shall be included in the
Collateral to the extent permitted thereby or by Section 9-406 or
Section 9-408 of the Uniform Commercial Code and (y) all proceeds
paid
or payable to the Issuers or any Guarantor from any sale, transfer or assignment
of such Contract and all rights to receive such proceeds shall be included
in
the Collateral.
“Excluded
Equipment”
means
at any date any equipment of the Issuers or any Guarantor which is subject
to,
or secured by, a Capital Lease Obligation or Purchase Money Indebtedness if
and
to the extent that (i) the express terms of a valid and enforceable
restriction in favor of a Person who is not an Issuer or a Guarantor or any
Affiliate thereof contained in the agreements or documents granting or governing
such Capital Lease Obligation or Purchase Money Indebtedness prohibits, or
requires any consent or establishes any other conditions for, an assignment
thereof, or a grant of a security interest therein, by the Issuers or any
Guarantor, (ii) such restriction relates only to the asset or assets
acquired by the Issuers or any Guarantor with the proceeds of such Capital
Lease
Obligation or Purchase Money Indebtedness and attachments thereto or
substitutions therefor and (iii) the Indebtedness and Liens in respect
of
such Capital Lease Obligation or Purchase Money Indebtedness are permitted
under
clause (4) of the definition of “Permitted Indebtedness” and clause
(7) of the definition of “Permitted Liens”, as the case may be; provided
that all proceeds paid or payable to any of the Issuers or any Guarantor from
any sale, transfer or assignment or other voluntary or involuntary disposition
of such equipment and all rights to receive such proceeds shall be included
in
the Collateral to the extent not otherwise required to be paid to the holder
of
the Capital Lease Obligation or Purchase Money Indebtedness secured by such
equipment.
“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 and able buyer, neither of whom is under undue pressure or compulsion
to
complete the transaction. Fair market value shall be determined by the Board
of
Directors of the Company acting reasonably and in good faith and shall be
evidenced by a board resolution of the Board of Directors of the Company
delivered to the Trustee.
11
“Foreign
Subsidiary”
means
any Subsidiary of the Company organized under the laws of, and conducting a
majority of its business in, any jurisdiction other than the United States
of
America, any state thereof or the District of Columbia.
“Four-Quarter
Period”
means
the four full fiscal quarters for which internal financial statements are
available ending on or prior to the Transaction Date.
“GAAP”
means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as
may be approved by a significant segment of the accounting profession of the
United States, consistently applied, as in effect on the Issue
Date.
“Global
Notes”
has the
meaning set forth under Section
2.16.
“guarantee”
means
any obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any Person and any obligation, direct or
indirect, contingent or otherwise, of such Person (1) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation of such Person (whether arising by virtue of partnership
arrangements, or by agreements to keep well, to purchase assets, goods,
securities or services, to take or pay or to maintain financial statement
conditions or otherwise) or (2) entered into for the purpose of assuring in
any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided,
however,
that
the term “guarantee” shall not include endorsements for collection or deposit in
the ordinary course of business. The term “guarantee” used as a verb has a
corresponding meaning.
“Guarantee”
means a
guarantee of the Notes by a Guarantor.
“Guarantors”
means
Parent and the Subsidiary Guarantors.
“Holder”
or
“Noteholder”
means
the person in whose name a Note is registered on the Registrar’s
books.
“incur”
means
to create, incur, assume, guarantee or otherwise become liable, contingently
or
otherwise, with respect to payment. Accrual of interest and accretion or
amortization or original issue discount will not be deemed to be an incurrence
of Indebtedness for purposes of this definition.
“Indebtedness”
means
with respect to any Person, without duplication,
(1) |
all
obligations of such Person for borrowed
money;
|
(2) |
all
obligations of such Person evidenced by bonds, debentures, notes
or other
similar instruments;
|
(3) |
all
Capitalized Lease Obligations of such
Person;
|
12
(4) |
all
obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all obligations
under any title retention agreement (but excluding trade accounts
payable
and other accrued liabilities arising in the ordinary course of
business);
|
(5) |
all
obligations for the reimbursement of any obligor on any letter of
credit,
banker’s acceptance or similar credit
transaction;
|
(6) |
all
obligations under Currency Agreements and Interest Swap Obligations
of
such Person;
|
(7) |
all
Attributable Indebtedness;
|
(8) |
all
Disqualified Capital Stock issued by such Person with the amount
of
Indebtedness represented by such Disqualified Capital Stock being
equal to
the greater of its voluntary or involuntary liquidation preference
and its
maximum fixed repurchase price;
|
(9) |
all
Preferred Stock of any Subsidiary of such Person not held by such
Person
or any Subsidiary of such Person with the amount of Indebtedness
represented by such Preferred Stock being equal to the liquidation
value
thereof;
|
(10) |
guarantees
in respect of Indebtedness of any other Person of the type referred
to in
clauses
(1)
through (9)
above; and
|
(11) |
all
obligations of any other Person of the type referred to in clauses
(1)
through (10)
which are secured by any Lien on any asset of such Person, the amount
of
such obligation being deemed to be the lesser of the fair market
value of
such asset or the amount of the obligation so
secured.
|
For
purposes hereof, the “maximum fixed repurchase price” of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined reasonably and in
good
faith by the Board of Directors of the issuer of such Disqualified Capital
Stock. Except with respect to Indebtedness referred to in clauses
(8),
(9)
and
(11)
above,
the amount of any Indebtedness outstanding as of any date shall be (1) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, and (2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
“Indenture”
means
this Indenture as amended, restated or supplemented from time to
time.
“Independent
Financial Advisor”
means a
firm (a) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect material financial interest in
Parent or any of its Subsidiaries and (b) which, in the judgment of the Board
of
Directors of the Company, is otherwise independent and qualified to perform
the
task for which it is to be engaged.
13
“Initial
Public Offering”
means
one or more underwritten public offerings registered under the Securities Act
of
1933 after which the market value of the Common Stock of Parent held by Persons
who are not Affiliates of Parent is at least $50.0 million.
“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) promulgated under the Securities Act.
“Intercreditor
Agreement” means
the
Intercreditor Agreement, dated as of the Issue Date, among the administrative
agents under the Credit Agreement and the Letters of Credit Facility, the
Trustee, the Collateral Agent, the Issuers and the Guarantors, as the same
may
be amended, supplemented or modified from time to time.
“Interest
Payment Date”
means
the first day of each month.
“Interest
Swap 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 payments made by such
other Person calculated by applying a fixed or a floating rate of interest
on
the same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
“Investment”
means,
with respect to any Person, any direct or indirect loan or other extension
of
credit (including, without limitation, a guarantee) or capital contribution
to
(by means of any Transfer of cash or other property to others or any payment
for
property or services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, any Person.
“Investment” excludes (1) extensions of trade credit by the Company and its
Subsidiaries on commercially reasonable terms in accordance with normal trade
practices of the Company or such Subsidiary, as the case may be, and (2) any
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of the Company or any warrants, options or other rights to purchase or
acquire any such Capital Stock. If the Company or any of its Subsidiaries sells
or otherwise disposes of any Capital Stock of any direct or indirect Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person ceases to be a Subsidiary of the Company, the Company will be deemed
to have made an Investment on the date of any such sale or disposition equal
to
the fair market value of the Capital Stock of such Subsidiary not sold or
disposed of.
“Issue
Date”
means
July 15, 2005 the date of initial issuance of the Notes.
“Issuers”
means
the parties named as such in the first paragraph of this Indenture until a
successor replaces either such party pursuant to Article Five and thereafter
means either such party and any such successor.
“Legal
Defeasance”
has the
meaning set forth under Section
9.02.
14
“Legal
Holiday”
has the
meaning set forth under Section
11.07.
“Letters
of Credit Facility”
means
the letters of credit facility established under the Credit Agreement dated
on
or about the Issue Date, by and among the Company, as borrower, Parent and
certain of the Company’s subsidiaries, as guarantors or co-borrowers, Xxxxx
Fargo Foothill, Inc., as administrative agent, and the lenders named therein,
including any notes, guarantees, collateral and security documents, instruments
and agreements executed in connection therewith, and in each case as amended
or
Refinanced from time to time, including any agreement or agreements extending
the maturity of, Refinancing, replacing or otherwise restructuring all or any
portion of the Indebtedness under such agreement, and any successor or
replacement agreement or agreements with the same or any other agents, creditor,
lender or group of creditors or lenders.
“Liens”
means
any mortgage, pledge, security interest, encumbrance, lien, charge or adverse
claim affecting title or resulting in any encumbrance against real or personal
property or a security interest of any kind, including, without limitation,
any
conditional sale or other title retention agreement or lease in the nature
thereof or any filing or agreement to file a financing statement as debtor
under
the Uniform Commercial Code or any similar statute other than to reflect
ownership by a third party of property leased to the Company or any of its
Subsidiaries under a lease that is not in the nature of a conditional sale
or
title retention agreement.
“Maturity
Date”
when
used with respect to any Note, means the date on which the principal amount
of
such Note becomes due and payable as therein or herein provided.
“Moody’s”
means
Xxxxx’x Investors Service, Inc. or any successor thereto.
“Mortgages”
means
the mortgages, deeds of trust, deeds to secure Obligations under the Notes
and
the Indenture or other similar documents creating Liens on the Premises, as
well
as the other Collateral secured by and described in the mortgages, deeds of
trust, deeds to secure indebtedness or other similar documents, in each case,
as
amended, modified or supplemented from time to time.
“Net
Cash Proceeds”
means,
with respect to any Asset Sale, the proceeds in the form of cash or Cash
Equivalents including payments in respect of deferred payment obligations
(except to the extent that such obligations are financed or sold with recourse
to the Company or any of its Subsidiaries) when received in the form of cash
or
Cash Equivalents (other than the portion of any such deferred payment
constituting interest or dividends) received by the Company or any of its
Subsidiaries from such Asset Sale, net of (a) all out-of-pocket expenses and
fees relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions), (b) taxes paid
or
payable after taking into account any reduction in consolidated tax liability
due to available tax credits or deductions and any tax sharing arrangements,
(c)
appropriate amounts provided by the Company or any of its Subsidiaries, as
a
reserve, in accordance with GAAP, against any liabilities associated with such
Asset Sale and retained by the Company or any of its Subsidiaries, after such
Asset Sale, including pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, and (d) amounts
required to be paid to any Person (other than the Company or any of its
Subsidiaries) owning a beneficial interest in the assets that are subject to
the
Asset Sale (by way of holding Capital Stock of the Person owning such assets
or
otherwise).
15
“Net
Proceeds Offer”
has the
meaning set forth under Section
4.12.
“Net
Proceeds Offer Amount”
has the
meaning set forth under Section
4.12.
“Net
Proceeds Offer Payment Date”
has the
meaning set forth under Section
4.12.
“Net
Proceeds Offer Trigger Date”
has the
meaning set forth under Section
4.12.
“Non-U.S.
Person”
means a
Person who is not a U.S. person, as defined in Regulation S.
“Notes”
means
the 14% Senior Secured Notes Due 2009 issued by the Issuers, as amended from
time to time in accordance with the terms hereof, that are issued pursuant
to
this Indenture.
“Obligations”
means
all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
“Opco
Senior Notes”
means
the senior notes due 2009 issued by the Company and PCA Finance pursuant to
the
Indenture dated June 27, 2002 among the Company, PCA Finance, the guarantors
party thereto and The Bank of New York Trust Company, N.A. (formerly known
as
The Bank of New York), as trustee.
“Opco
Senior Subordinated Notes”
means
the senior subordinated notes issued by the Company pursuant to the purchase
agreement dated June 27, 2002 among the Company, GS Mezzanine Partners II,
L.P.
and GS Mezzanine Partners II Offshore, L.P.
“Offering
Circular”
means
the Issuers’ offering circular dated June 30, 2005 relating to the offering of
Notes issued on the Issue Date.
“Officer”,
with
respect to any Person (other than the Trustee), means the Chairman of the Board
of Directors, Chief Executive Officer, the President, any Vice President or
Assistant Vice President and the Chief Financial Officer, the Treasurer or
any
Assistant Treasurer or the Secretary or any Assistant Secretary of such Person,
or any other officer of such Person designated by the Board of Directors of
such
Person and set forth in an Officers’ Certificate delivered to the
Trustee.
“Officers’
Certificate”
means,
with respect to any Person, a certificate signed by the Chairman of the Board
of
Directors, the Chief Executive Officer or the President and the Chief Financial
Officer, the Treasurer or the Assistant Treasurer of such Person that shall
comply with applicable provisions of this Indenture.
“Opinion
of Counsel”
means a
written opinion from legal counsel (who may be counsel to the Issuers or the
Guarantors) stating the matters required by Section
11.05
and
delivered to the Trustee.
16
“Other
Notes”
has the
meaning set forth under Section
2.02.
“Parent”
means
Portrait Corporation of America, Inc., a Delaware corporation.
“Parent
Senior Subordinated Discount Notes”
means
the senior subordinated discount notes issued by Parent pursuant to the purchase
agreement dated the June 27, 2002 among Parent, GS Mezzanine Partners II, L.P.
and GS Mezzanine Partners II Offshore, L.P.
“Paying
Agent”
has the
meaning set forth under Section
2.04.
“PCA”
means
the party named as such in the first paragraph
of this
Indenture, until a successor replaces such party pursuant to Article Five and
thereafter means the successor.
“PCA
Finance”
means
the party named as such in the first paragraph
of this
Indenture.
“Permitted
Business”
has the
meaning set forth in Section
4.17.
“Permitted
Holders”
means
the Sponsor and its Affiliates.
“Permitted
Indebtedness”
means,
without duplication, each of the following:
(1) |
the
Notes issued on the Issue Date and any guarantees relating
thereto;
|
(2) |
other
Indebtedness of the Company and its Subsidiaries outstanding on the
Issue
Date;
|
(3) |
Indebtedness
incurred pursuant to the Credit Agreement in an aggregate amount
not
exceeding $10.0 million at any time outstanding, less any repayments
required to be made, and actually made, thereunder with the Net Cash
Proceeds of Asset Sales in accordance with Section
4.12;
|
(4) |
Capitalized
Lease Obligations and Purchase Money Indebtedness, and Refinancing
Indebtedness thereof, in an aggregate amount not to exceed $5.0 million
at
any time outstanding;
|
(5) |
Indebtedness
owed by the Company or any of its Subsidiaries to the Company or
any of
its Subsidiaries; provided,
that (a) any such Indebtedness owed by the Company shall be expressly
subordinated to the prior payment in full in cash of all obligations
with
respect to the Notes, and any such Indebtedness owed by any Guarantor
shall be expressly subordinated to the prior payment in full in cash
of
all obligations with respect to the Guarantee of such Guarantor;
and (b)
if such Indebtedness is held by a Person other than the Company or
any of
its Subsidiaries, the obligor of such Indebtedness shall be deemed
to have
incurred Indebtedness not permitted by this clause
(5);
|
(6) |
(x)
the guarantee by the Company or any Guarantor of Indebtedness of
the
Company or a Guarantor and (y) the guarantee by any Subsidiary that
is not
a Guarantor of Indebtedness of any other Subsidiary that is not a
Guarantor; provided,
that, in each case, the Indebtedness being guaranteed is permitted
to be
incurred by another provision of this
Indenture;
|
17
(7) |
(x)
Interest Swap Obligations of the Company relating to (a) Indebtedness
of
the Company or any of its Subsidiaries or (b) Indebtedness that the
Company or any of its Subsidiaries reasonably intends to incur within
six
months; and (y) Interest Swap Obligations of any Subsidiary of the
Company
relating to (a) Indebtedness of such Subsidiary or (b) Indebtedness
that
such Subsidiary reasonably intends to incur within six months; provided
any such Interest Swap Obligations will constitute “Permitted
Indebtedness” only to the extent the notional principal amount of such
Interest Swap Obligations, when incurred, does not exceed the principal
amount of the Indebtedness to which such Interest Swap Obligations
relate;
|
(8) |
Indebtedness
by the Company or any of its Subsidiaries under Currency Agreements;
provided,
that (x) such agreements are entered into to protect the Company
and its
Subsidiaries from fluctuations in currency exchange rates (and not
for
speculative purposes) and (y) in the case of Currency Agreements
which
relate to Indebtedness, such Currency Agreements do not increase
the
Indebtedness of the Company and its Subsidiaries outstanding other
than as
a result of fluctuations in foreign currency exchange rates or by
reason
of fees, indemnities and compensation payable
thereunder;
|
(9) |
Indebtedness
of the Company or any of its Subsidiaries arising from the honoring
by a
bank or other financial institution of a check, draft or similar
instrument inadvertently (except in the case of daylight overdrafts)
drawn
against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five business
days
of incurrence;
|
(10) |
Indebtedness
of the Company or any of its Subsidiaries represented by letters
of credit
for the account of the Company or any Subsidiary, as the case may
be, in
an aggregate principal amount not to exceed $20.0 million at any
time
outstanding, in order to provide security for workers’ compensation
claims, payment obligations in connection with self insurance or
similar
requirements in the ordinary course of business, and other Indebtedness
with respect to workers’ compensation claims, self insurance obligations,
performance, surety and similar bonds and completion guarantees provided
by the Company or any of its Subsidiaries in the ordinary course
of
business;
|
(11) |
indemnification,
adjustment of purchase price or similar obligations, in each case,
incurred or assumed in connection with the disposition of any business
or
assets of the Company or any of its Subsidiaries or Capital Stock
of a
Subsidiary; provided,
that the maximum aggregate liability in respect of all such obligations
of
the Company outstanding under this clause
(11)
shall at no time exceed the gross proceeds including non-cash proceeds
(the fair market value of such non-cash proceeds being measured at
the
time received and without giving effect to any subsequent changes
in
value) actually received by the Company and its Subsidiaries in connection
with such dispositions;
|
11
(12) |
obligations
of the Company or any of its Subsidiaries in respect of performance
bonds
and completion, guarantee, surety and similar bonds in the ordinary
course
of business;
|
(13) |
Refinancing
Indebtedness incurred to Refinance Indebtedness (x) incurred pursuant
to
clause
(1)
above or this clause
(13),
(y) referred to in clause
(2)
above or (z) referred to in clause
(15)
below;
|
(14) |
Indebtedness
of Foreign Subsidiaries in an aggregate amount not to exceed $2.5
million
at any time outstanding; and
|
(15) |
additional
Subordinated Pay-In-Kind Indebtedness in an aggregate amount not
to exceed
$10.0 million at any time
outstanding.
|
“Permitted
Investments”
means:
(1) |
any
Investment by the Company or any of its Subsidiaries (other than
PCA
Finance) in a Person, if as a result of such Investment: (a) such
Person
becomes a Guarantor; or (b) such Person is merged or consolidated
with or
into, or Transfers all or substantially all of its assets to, or
is
liquidated into, the Company or a
Guarantor;
|
(2) |
any
Investment by any Subsidiary of the Company that is not a Guarantor
(other
than PCA Finance) in: (a) any other Subsidiary of the Company; or
(b) any
Person, if as a result of such Investment (x) such Person becomes
a
Subsidiary of the Company, or (y) such Person is merged or consolidated
with or into, or Transfers all or substantially all of its assets
to, or
is liquidated into, the Company or any of its
Subsidiaries;
|
(3) |
Investments
in the Company or any Guarantor;
|
(4) |
Investments
in cash or Cash Equivalents;
|
(5) |
loans
and advances to directors, officers and employees of the Company
and its
Subsidiaries for the purpose of paying any taxes in respect of the
exercise of stock options or
warrants;
|
(6) |
Investments
in securities received pursuant to any plan of reorganization or
similar
arrangement upon the bankruptcy or insolvency of any debtors of the
Company or its Subsidiaries or in good faith settlement of delinquent
obligations of such debtors;
|
(7) |
Investments
received as consideration from an Asset Sale made in compliance with
Section
4.12;
|
19
(8) |
Investments
existing on the Issue Date;
|
(9) |
Investments
in Interest Swap Obligations and Currency Agreements of the type
described
in clauses
(7)
and (8)
of
the definition of “Permitted
Indebtedness;”
|
(10) |
Investments
of a Person or any of its Subsidiaries existing at the time such
Person
becomes a Subsidiary of the Company or at the time such Person merges
or
consolidates with the Company or any of its Subsidiaries, in either
case,
in compliance with this Indenture; provided,
that such Investments were not made by such Person in connection
with, or
in anticipation or contemplation of, such Person becoming a Subsidiary
of
the Company or such merger or
consolidation;
|
(11) |
Investments
in purchase price adjustments, contingent purchase price payments
or other
earn-out obligations received in connection with Investments otherwise
permitted under this Indenture;
|
(12) |
any
Investment acquired in exchange for the issuance of, or acquired
with the
net cash proceeds of any substantially concurrent issuance and sale
of
Qualified Capital Stock;
|
(13) |
any
purchase or Refinancing of the Notes;
and
|
(14) |
guarantees
of Indebtedness otherwise permitted under this
Indenture.
|
“Permitted
Liens”
means,
with respect to any Person:
(1) |
Liens
existing on the date of this
Indenture;
|
(2) |
Liens
in favor of the Company or any Subsidiary of the
Company;
|
(3) |
Liens
securing the Credit Agreement and the Letters of Credit Facility
incurred
pursuant to clause
(3)
and clause
(10),
respectively, of the definition of “Permitted
Indebtedness;”
|
(4) |
Liens
securing any Indebtedness of any Foreign Subsidiary; provided,
that such Liens do not extend to or cover any assets other than assets,
or
the Capital Stock, of Foreign
Subsidiaries;
|
(5) |
Liens
securing Purchase Money Indebtedness and Capitalized Lease Obligations
permitted to be incurred under this
Indenture;
|
(6) |
Liens
securing Refinancing Indebtedness which is incurred to refinance
any
Indebtedness outstanding on the Issue Date (other than under the
Credit
Agreement) or Indebtedness incurred under clause
(5)
above; provided,
that such Liens (a) taken as a whole, in the good faith judgment
of the
Board of Directors of the Company, are not materially less favorable
to
the Noteholders and are not materially more favorable to the lienholders
with respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced and (b) do not extend to or cover any assets of
the
Company or any of its Subsidiaries not securing the Indebtedness
so
Refinanced;
|
20
(7) |
Liens
to secure the performance of statutory obligations, including Liens
made
in connection with workmen’s compensation, unemployment insurance, old age
pensions, social security and public liability and similar legislation,
surety or appeal bonds, performance bonds or other obligations of
a like
nature incurred in the ordinary course of
business;
|
(8) |
Liens
upon specific items of inventory or other goods and proceeds of any
Person
securing such Person’s obligations in respect of bankers’ acceptances
issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other
goods;
|
(9) |
Liens
securing reimbursement obligations with respect to letters of credit
which
encumber documents and other assets relating to such letters of credit
and
products and proceeds thereof;
|
(10) |
Liens
securing the payment of taxes, assessments and governmental charges
or
levies, either (a) not delinquent or (b) being contested in good
faith by
appropriate proceedings;
|
(11) |
carriers’,
warehousemen’s, mechanics’, landlords’, materialmen’s, workmen’s,
repairmen’s, supplier’s or other similar Liens that are not delinquent or
that are being contested in good faith and by appropriate
proceedings;
|
(12) |
Liens
securing (a) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases and statutory obligations
and (b)
other non-delinquent obligations of a like nature, incurred in the
ordinary course of business;
|
(13) |
Liens
consisting of judgment or judicial attachment Liens and Liens securing
contingent obligations on appeal bonds and other bonds posted in
connection with court proceedings or judgments, only for so long
as the
existence of the related judgment does not otherwise give rise to
an Event
of Default;
|
(14) |
interests
of lessors or sublessors, easements, rights-of-way, restrictive covenants,
reservations, zoning restrictions, development restrictions or
regulations, facility cost, sharing and servicing contracts and other
similar encumbrances or other title defects which, in the aggregate,
do
not materially detract from the value of the property subject thereto
or
interfere with the ordinary conduct of the business of the Company
and its
Subsidiaries taken as a whole;
|
(15) |
Liens
arising out of conditional sale, title retention, consignment or
similar
arrangements for sale of goods;
|
(16) |
Liens
arising solely by virtue of any statutory, regulatory, contractual,
warranty or common law provision relating to banker’s liens, rights of
setoff or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository
institution;
|
21
(17) |
licenses
of intellectual property granted in the ordinary course of
business;
|
(18) |
Liens
securing Interest Swap Obligations, which Interest Swap Obligations
are
permitted under this Indenture;
|
(19) |
Liens
securing Indebtedness under Currency Agreements, which Indebtedness
is
permitted under this Indenture;
|
(20) |
Liens
in favor of customs or revenue authorities in connection with customs
duties; and
|
(21) |
Liens
securing the Notes and the Guarantees or any Obligations owing to
the
Trustee or the Collateral Agent under the Indenture or the Collateral
Agreements.
|
“Person”
means
an individual, partnership, corporation, limited liability company,
unincorporated organization, trust or joint venture or a governmental agency
or
political subdivision thereof.
“Physical
Notes”
means
certificated Notes in registered form in substantially the form set forth in
Exhibit
A.
“Preferred
Stock”
of any
Person means any Capital Stock of such Person that has preferential rights
to
any other Capital Stock of such Person with respect to dividends or redemptions
or upon liquidation.
“Premises”
has the
meaning set forth in Section
4.20.
“principal”
of a
Note means the principal of the Note plus the premium, if any, payable on the
Note which is due or overdue or is to become due at the relevant
time.
“Private
Placement Legend”
means
the legend initially set forth on the Rule 144A Notes and Other Notes that
are
Restricted Notes in the form set forth in Exhibit
B.
“Purchase
Money Indebtedness”
means
Indebtedness of the Company or any of its Subsidiaries incurred for the purpose
of financing all or any part of the purchase price, or the cost of construction
or improvement, of any assets to be used in the ordinary course of business
by
the Company or any of its Subsidiaries; provided, however, that (1) the
aggregate principal amount of such Indebtedness shall not exceed such purchase
price or cost, (2) such Indebtedness shall be incurred no later than 180 days
after the acquisition of such assets or completion of such construction or
improvement and (3) such Indebtedness shall not be secured by any assets of
the
Company or any of its Subsidiaries other than the assets so acquired or
constructed and improvements thereon.
“Qualified
Capital Stock”
means
any Capital Stock of the Company that is not Disqualified Capital
Stock.
22
“Qualified
Equity Offering”
means
any issuance and sale by Parent of Capital Stock (other than Disqualified
Capital Stock) to a Person not an Affiliate of PCA or a Permitted Holder (a)
in
a public offering registered under the Securities Act of 1933, as amended,
or
(b) in a private placement pursuant to an exemption from the registration
requirements of such act, in each case, in which gross proceeds of at least
$25.0 million are contributed in cash to the common equity capital of
PCA.
“Qualified
Vendor Payables”
means
vendor payables resulting from the procurement of photographic film, paper
and
processing chemistry, which as of June 15, 2005 totaled $20.7
million.
“Redemption
Date”
when
used with respect to any Note to be redeemed means the date fixed for such
redemption pursuant to the terms of the Notes.
“Refinance”
means,
in respect of any security or Indebtedness, to refinance, extend, renew, refund,
repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness
in exchange or replacement for, such security or Indebtedness in whole or in
part. “Refinanced” and “Refinancing” shall have correlative
meanings.
“Refinancing
Indebtedness”
means,
with respect to any Indebtedness, Indebtedness incurred to Refinance such
Indebtedness that does not
(1) |
result
in an increase in the aggregate amount or liquidation preference,
if
applicable, of Indebtedness being Refinanced as of the date of such
proposed Refinancing (plus the amount of (i) accrued interest or
dividends
on the Indebtedness so Refinanced, (ii) any penalties, interest or
premium
required to be paid under the terms of the instrument governing such
Indebtedness and (iii) reasonable fees, discounts, commissions and
other
expenses incurred by the Company or any of its Subsidiaries in connection
with such Refinancing) or
|
(2) |
create
Indebtedness with (a) a Weighted Average Life to Maturity that is
less
than the Weighted Average Life to Maturity of the Indebtedness being
Refinanced or (b) a final maturity earlier than the final maturity
of the
Indebtedness being Refinanced;
|
provided,
that
(x)
if the Indebtedness being Refinanced is subordinate or junior to the Notes
in
right of payment, then such Refinancing Indebtedness shall be subordinate in
right of payment to the Notes at least to the same extent and in the same manner
as the Indebtedness being Refinanced, (y) the obligor(s) on the Refinancing
Indebtedness thereof shall include only the obligor(s) on the Indebtedness
Refinanced, the Company and/or one or more Guarantors and (z) Capital Stock
shall be Refinanced only with Capital Stock.
“Registrar”
has the
meaning set forth under Section
2.04.
“Regulation
S”
means
Regulation S promulgated under the Securities Act.
“Regulation
S Global Note”
has the
meaning set forth under Section
2.16.
23
“Regulation
S Notes”
has the
meaning set forth under Section
2.02.
“Replacement
Assets”
has the
meaning set forth under Section
4.12.
“Responsible
Officer”
when
used with respect to the Trustee, means an officer or assistant assigned to
the
corporate trust department of the Trustee (or any successor group of the
Trustee) with direct responsibility for the administration of this Indenture
and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
“Restricted
Global Note”
has the
meaning set forth under Section
2.16.
“Restricted
Note”
has the
same meaning as “Restricted Security” set forth in Rule 144(a)(3) promulgated
under the Securities Act; provided,
that
the Trustee shall be entitled to request and conclusively rely upon an Opinion
of Counsel with respect to whether any Note is a Restricted Note.
“Restricted
Payment”
means
to
(1) |
declare
or pay any dividend or make any distribution, other than dividends
or
distributions payable in Qualified Capital Stock of the Company,
on or in
respect of Capital Stock of the Company or any of its Subsidiaries
to
holders of such Capital Stock (other than the Company or any of its
Subsidiaries);
|
(2) |
purchase,
redeem or otherwise acquire or retire for value any Capital Stock
of the
Company or any of its Subsidiaries or any warrants, options or other
rights to purchase or acquire any such Capital
Stock;
|
(3) |
make
any principal payment on, purchase, defease, redeem, prepay, decrease
or
otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment,
any
Indebtedness of the Company or any Guarantor that is subordinate
or junior
in right of payment to the Notes or the Guarantee of such Guarantor,
other
than the prepayment, purchase, repurchase or other acquisition or
retirement of Indebtedness in anticipation of satisfying a sinking
fund
obligation, principal installment or final maturity, in each case
due
within one year of the date of prepayment, purchase, repurchase or
other
acquisition or retirement; or
|
(4) |
make
any Investment other than Permitted
Investments.
|
“Restricted
Period”
has the
meaning set forth under Section
2.16.
“Rule
144”
means
Rule 144 promulgated under the Securities Act.
“Rule
144A”
means
Rule 144A promulgated under the Securities Act.
“Rule
144A Notes”
has the
meaning set forth under Section
2.02.
24
“S&P”
means
Standard & Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“Sale
and Leaseback Transaction”
means
an arrangement relating to property now owned or hereafter acquired whereby
the
Company or a Subsidiary of the Company Transfers such property to a person
and
the Company or a Subsidiary of the Company leases it from such
person.
“Securities
Act”
means
the Securities Act of 1933, as amended, or any successor statute or statutes
thereto.
“Security
Agreement”
means
the Security Agreement, dated as of the Issue Date, made by the Issuers and
the
Guarantors in favor of the Collateral Agent, as amended, modified or
supplemented from time to time.
“Significant
Subsidiary”
means
(1) any Subsidiary that is a “significant subsidiary” of the Company on a
consolidated basis within the meaning of Regulation S-X promulgated by the
Commission or (2) any Subsidiary that, when aggregated with all other
Subsidiaries that are not otherwise Significant Subsidiaries and as to which
any
event described in clause
(7),
(8)
or
(9)
under
Section
6.01
has
occurred and is continuing, would constitute a Significant Subsidiary under
clause
(1)
of this
definition.
“Sponsor”
means
Jupiter Partners II, L.P., a Delaware limited partnership.
“Stated
Maturity”
when
used with respect to any security or any installment of interest thereon, means
the date specified in such security as the fixed date on which the principal
of
such security or such installment of interest is due and payable.
“Subordinated
Pay-In-Kind Indebtedness”
means
Indebtedness which (a) is subordinated in right of payment to the Notes and
the
Guarantees at least to the same extent as the Opco Senior Subordinated Notes
are
subordinated to the Notes and the Guarantees, (b) is not secured by any Liens
on
any assets of Parent, the Company or any Subsidiary of Parent or the Company
and
(c) does not require any cash payments of interest, principal or other amounts
prior to the date that is 91 days after June 1, 2009.
“Subsidiary”
of any
Person means (1) any Person of which more than 50% of the total voting power
of
Capital Stock entitled (without regard to the occurrence of any contingency)
to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more
of
the Subsidiaries of that Person or a combination thereof, and (2) any
partnership, joint venture or other Person in which such Person or one or more
of the Subsidiaries of that Person or a combination thereof has the power,
directly or indirectly, to control by contract or otherwise the board of
directors or equivalent governing body or otherwise controls such
entity.
“Subsidiary
Guarantors”
means
(1) each of the following:
25
American
Studios, Inc.;
PCA
National LLC;
PCA
National of Texas L.P.;
Hometown
Threads LLC;
PCA
Photo
Corporation of Canada, Inc.; and
Photo
Corporation of America
and
(2)
any other Subsidiary of the Company that issues a Guarantee, in each case,
until
such Person is released from its Guarantee in accordance with this
Indenture.
“Surviving
Person”
has
the
meaning set forth under Section
5.01.
“Tax
Distribution”
means
any distribution made pursuant to the Tax Sharing Agreement between the Parent
and the Company and certain of the Company’s Subsidiaries, as in effect on the
Issue Date.
“TIA”
means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on
the date of this Indenture (except as provided in Section
8.03).
“Transaction
Date”
means
the date of the transaction giving rise to the need to calculate Consolidated
EBITDA or the Consolidated Fixed Charge Coverage Ratio.
“Transfer”
means
to, directly or indirectly, sell, assign, transfer, lease (other than pursuant
to an operating lease entered into in the ordinary course of business), convey
or otherwise dispose of, including by Sale and Leaseback Transaction,
consolidation, merger or otherwise, in one transaction or a series of
transactions. “Transferred,”“Transferor” and “Transferee” shall have correlative
meanings.
“Treasury
Rate” means,
with respect to a Redemption Date, the yield to maturity at the time
of
computation of United States treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) (or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity)
that has become publicly available at least two Business Days prior to such
Redemption Date (or, if such Statistical Release (or any successor release)
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from such Redemption Date to December
1,
2006; provided
however, that
if
the period from such Redemption Date to December 1, 2006 is not equal
to
the constant maturity of the United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such Redemption Date to December
1,
2006 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall
be
used.
“Trustee”
means
the party named as such in this Indenture until a successor replaces it pursuant
to this Indenture and thereafter means the successor.
26
“U.S.
Government Obligations”
shall
mean securities that are (1) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (2) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as full faith and credit obligation by the United
States of America, that, in either case, are not callable or redeemable at
the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government
Obligations or a specific payment of interest on or principal of any such U.S.
Government Obligations held by such custodian for the account of the holder
of a
depository receipt; provided,
that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
for
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
“Voting
Stock”
means,
with respect to any Person, Capital Stock of such Person entitling the holders
thereof, under ordinary circumstances, to vote in the election of the Board
of
Directors of such Person.
“Weighted
Average Life to Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained
by
dividing:
(1) |
the
then outstanding aggregate principal amount of such Indebtedness
into
|
(2) |
the
sum of the total of the products obtained by multiplying (x) the
amount of
each then remaining installment, sinking fund, serial maturity or
other
required payment of principal, including payment at final maturity,
in
respect thereof, by (y) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of
such
payment.
|
“Wholly-Owned
Subsidiary”
of any
Person means any Subsidiary of such Person of which all the outstanding Capital
Stock (other than in the case of a Foreign Subsidiary, directors’ qualifying
shares) are owned by such Person or any Wholly-Owned Subsidiary of such
Person.
SECTION 1.02. |
Incorporation
by Reference of Trust Indenture Act.
|
Whenever
this Indenture refers to a provision of the TIA, the portion of such provision
required to be incorporated herein in order for this Indenture to be qualified
under the TIA is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
“indenture
securities” means the Notes.
“indenture
securityholder” means a Holder or Noteholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
27
“obligor
on the indenture securities” means the Issuers, the Guarantors or any other
obligor on the Notes.
All
other
terms used in this Indenture that are defined by the TIA, defined in the TIA
by
reference to another statute or defined by Commission rule have the meanings
therein assigned to them.
SECTION 1.03. |
Rules
of Construction.
|
Unless
the context otherwise requires:
(1) a
term
has the meaning assigned to it herein, whether defined expressly or by
reference;
(2) “or”
is
not exclusive;
(3) words
in
the singular include the plural, and in the plural include the
singular;
(4) words
used herein implying any gender shall apply to both genders;
(5) “herein,”“hereof”
and other words of similar import refer to this Indenture as a whole and not
to
any particular Article, Section or other subsection;
(6) unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statements of
the
Company; and
(7) “$,”“U.S.
Dollars” and “United States Dollars” each refer to United States dollars, or
such other money of the United States that at the time of payment is legal
tender for payment of public and private debts.
ARTICLE
TWO
THE
NOTES
SECTION 2.01. |
Amount
of Notes.
|
The
Trustee shall authenticate Notes for original issue on the Issue Date in an
aggregate principal amount of $50,000,000 upon a written order of the Issuers
in
the form of an Officers’ Certificate of the Issuers (other than as provided in
Section
2.08).
SECTION 2.02. |
Form
and Dating.
|
The
Notes
and the Trustee’s certificate of authentication with respect thereto shall be
substantially in the form set forth in Exhibit
A,
which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which
the
Issuers are subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
(“Rule
144A Notes”)
shall
bear the legend and include the form of assignment set forth in Exhibit
B,
Notes
offered and sold in offshore transactions in reliance on Regulation S
(“Regulation
S Notes”)
shall
bear the legend and include the form of assignment set forth in Exhibit
C,
and
Notes offered and sold to Institutional Accredited Investors in transactions
exempt from registration under the Securities Act not made in reliance on Rule
144A or Regulation S (“Other
Notes”)
may be
represented by a Restricted Global Note or, if such an investor may not hold
an
interest in the Restricted Global Note, a Physical Note, in each case, bearing
the Private Placement Legend. Each Note shall be dated the date of its
authentication.
28
The
terms
and provisions contained in the Notes shall constitute, and are expressly made,
a part of this Indenture and, to the extent applicable, the Issuers, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and agree to be bound
thereby.
The
Notes
may be presented for registration of transfer and exchange at the offices of
the
Registrar.
SECTION 2.03. |
Execution
and Authentication.
|
One
Officer shall sign (who shall have been duly authorized by all requisite
corporate actions) the Notes for the Issuers by manual or facsimile
signature.
If
an
Officer whose signature is on a Note was an Officer at the time of such
execution but no longer holds that office at the time the Trustee authenticates
the Note, the Note shall be valid nevertheless.
No
Note
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Note shall have been authenticated and delivered hereunder but never issued
and
sold by the Issuers, and the Issuers shall deliver such Note to the Trustee
for
cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
The
Trustee may appoint an authenticating agent reasonably acceptable to the Issuers
to authenticate the Notes. Unless otherwise provided in the appointment, an
authenticating agent may authenticate the 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 Issuers and Affiliates of the Issuers.
29
The
Notes
shall be issuable only in registered form without coupons in denominations
of
$1,000 and any integral multiple thereof.
SECTION 2.04. |
Registrar
and Paying Agent.
|
The
Issuers shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (the “Registrar”),
and
an office or agency where Notes may be presented for payment (the “Paying
Agent”)
and an
office or agency where notices and demands to or upon the Issuers, if any,
in
respect of the Notes and this Indenture may be served. The Registrar shall
keep
a register of the Notes and of their transfer and exchange. The Issuers may
have
one or more additional Paying Agents. The term “Paying Agent” includes any
additional Paying Agent.
The
Issuers shall enter into an appropriate agency agreement, which shall
incorporate the provisions of the TIA, with any Agent that is not a party to
this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Issuers shall notify the Trustee of the name
and
address of any such Agent. If the Issuers fail to maintain a Registrar or Paying
Agent, or fail to give the foregoing notice, the Trustee shall act as such
and
shall be entitled to appropriate compensation in accordance with Section
7.07.
The
Issuers initially appoint the Trustee as Registrar, Paying Agent and Agent
for
service of notices and demands in connection with the Notes and this Indenture.
The Issuers may change any Paying Agent or Registrar without notice. The Company
or any of its Affiliates may act as Paying Agent or Registrar.
SECTION 2.05. |
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
or
premium or interest on the Notes (whether such money has been paid to it by
the
Issuers or any other obligor on the Notes or the Guarantors), and the Issuers
and the Paying Agent shall notify the Trustee of any default by the Issuers
(or
any other obligor on the Notes) 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 Issuers 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 specified
in Section 6.01(1) or (2), upon written request 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 2.06. |
Noteholder
Lists.
|
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of the Noteholders.
If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee
at
least five Business Days before each Interest Payment Date, and at such other
times as the Trustee may request in writing, a list in such form and as of
such
date as the Trustee may reasonably require of the names and addresses of the
Noteholders.
30
SECTION 2.07. |
Transfer
and Exchange.
|
Subject
to Sections 2.16 and 2.17, when Notes are presented to the Registrar with a
request from the Holder of such Notes to register a transfer or to exchange
them
for an equal principal amount of Notes of other authorized denominations, the
Registrar shall register the transfer as requested. Every Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed
or
be accompanied by a written instrument of transfer in form satisfactory to
the
Issuers and the Registrar, duly executed by the Holder thereof or his attorneys
duly authorized in writing. To permit registrations of transfers and exchanges,
the Issuers shall issue and execute and the Trustee shall authenticate new
Notes
(and the Guarantors shall execute the guarantee thereon) evidencing such
transfer or exchange at the Registrar’s request. No service charge shall be made
to the Noteholder for any registration of transfer or exchange. The Issuers
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 2.11, 3.06, 4.08, 4.12 or 8.05 (in which events the Issuers shall be
responsible for the payment of such taxes). The Registrar shall not be required
to exchange or register a transfer of any Note for a period of 15 days
immediately preceding the mailing of notice of redemption of Notes to be
redeemed or of any Note selected, called or being called for redemption except
the unredeemed portion of any Note being redeemed in part.
Any
Holder of the Global Note shall, by acceptance of such Global Note, agree that
transfers of the beneficial interests in such Global Note 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 Global Note shall
be
required to be reflected in a book entry.
Except
as
expressly provided herein, neither the Trustee nor the Registrar shall have
any
duty to monitor the Issuers’ compliance with or have any responsibility with
respect to the Issuers’ compliance with any Federal or state securities
laws.
SECTION 2.08. |
Replacement
Notes.
|
If
a
mutilated Note is surrendered to the Registrar or the Trustee, or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken,
the
Issuers shall issue and the Trustee shall authenticate a replacement Note (and
the Guarantors shall execute the guarantee thereon) if the Holder of such Note
furnishes to the Issuers and the Trustee evidence reasonably acceptable to
them
of the ownership and the destruction, loss or theft of such Note and if the
requirements of Section 8-405 of the New York Uniform Commercial Code as in
effect on the date of this Indenture are met. If required by the Trustee or
the
Issuers, an indemnity bond shall be posted, sufficient in the judgment of all
to
protect the Issuers, the Guarantors, the Trustee or any Paying Agent from any
loss that any of them may suffer if such Note is replaced. The Issuers may
charge such Holder for the Issuers’ reasonable out-of-pocket expenses in
replacing such Note and the Trustee may charge the Issuers for the Trustee’s
expenses (including, without limitation, attorneys’ fees and disbursements) in
replacing such Note. Every replacement Note shall constitute a contractual
obligation of the Issuers.
31
SECTION 2.09. |
Outstanding
Notes.
|
The
Notes
outstanding at any time are all Notes that have been authenticated by the
Trustee except for (a) those canceled by it, (b) those delivered to it for
cancellation, (c) to the extent set forth in Sections 9.01 and 9.02, on or
after
the date on which the conditions set forth in Section 9.01 or 9.02 have been
satisfied, those Notes theretofore authenticated and delivered by the Trustee
hereunder and (d) those described in this Section 2.09 as not outstanding.
Subject to Section 2.10, a Note does not cease to be outstanding because the
Issuers or one of its Affiliates holds the Note.
If
a Note
is replaced pursuant to Section 2.08, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by
a
bona fide purchaser in whose hands such Note is a legal, valid and binding
obligation of the Issuers.
If
the
Paying Agent holds, in its capacity as such, on any Maturity Date, money
sufficient to pay all accrued interest and principal with respect to the Notes
payable on that date and is not prohibited from paying such money to the Holders
thereof pursuant to the terms of this Indenture, then on and after that date
such Notes cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.10. |
Treasury
Notes.
|
In
determining whether the Holders of the required principal amount of Notes have
concurred in any declaration of acceleration or notice of default or direction,
waiver or consent or any amendment, modification or other change to this
Indenture, Notes owned by the Issuers or any other Affiliate of the Issuers
shall be disregarded as though they were not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on
any
such direction, waiver or consent or any amendment, modification or other change
to this Indenture, only Notes as to which a Responsible Officer of the Trustee
has actually received an Officers’ Certificate stating that such Notes are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee established to the satisfaction
of
the Trustee the pledgee’s right so to act with respect to the Notes and that the
pledgee is not an Issuer, a Guarantor, any other obligor on the Notes or any
of
their respective Affiliates.
SECTION 2.11. |
Temporary
Notes.
|
Until
definitive Notes are prepared and ready for delivery, the Issuers may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that
the
Issuers consider appropriate for temporary Notes. Without unreasonable delay,
the Issuers shall prepare and the Trustee shall authenticate definitive Notes
in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive
Notes.
32
SECTION 2.12. |
Cancellation.
|
The
Issuers at any time may deliver Notes to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the record
retention requirements of the Exchange Act) dispose of such canceled Notes
in
its customary manner. The Issuers may not reissue or resell, or issue new Notes
to replace, Notes that the Issuers have redeemed or paid, or that have been
delivered to the Trustee for cancellation.
SECTION 2.13. |
Defaulted
Interest.
|
If
the
Issuers default on a payment of interest on the Notes, it shall pay the
defaulted interest, plus (to the extent permitted by law) any interest payable
on the defaulted interest, in accordance with the terms hereof, to the Persons
who are Noteholders on a subsequent special record date, which date shall be
at
least five Business Days prior to the payment date. The Issuers shall fix such
special record date and payment date in a manner satisfactory to the Trustee.
At
least 10 days before such special record date, the Issuers shall mail to each
Noteholder a notice that states the special record date, the payment date and
the amount of defaulted interest, and interest payable on defaulted interest,
if
any, to be paid. The Issuers may make payment of any defaulted interest in
any
other lawful manner not inconsistent with the requirements (if applicable)
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
Issuers to the Trustee of the proposed payment pursuant to this sentence, such
manner of payment shall be deemed practicable by the Trustee.
SECTION 2.14. |
CUSIP
Number.
|
The
Issuers in issuing the Notes may use a “CUSIP” number, and if so, such CUSIP
number shall be included in notices of redemption or exchange as a convenience
to Holders; provided,
that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Notes, and
that
reliance may be placed only on the other identification numbers printed on
the
Notes. The Issuers shall promptly notify the Trustee of any such CUSIP number
used by the Issuers in connection with the issuance of the Notes and of any
change in the CUSIP number.
SECTION 2.15. |
Deposit
of Moneys.
|
Prior
to
10:00 a.m., New York City time, on each Interest Payment Date and Maturity
Date,
the Issuers shall have deposited with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due on such Interest
Payment Date or Maturity Date, as the case may be, in a timely manner which
permits the Trustee to remit payment to the Holders on such Interest Payment
Date or Maturity Date, as the case may be. The principal and interest on Global
Notes shall be payable to the Depository or its nominee, as the case may be,
as
the sole registered owner and the sole Holder of the Global Notes represented
thereby. The principal and interest on Physical Notes shall be payable, at
the
Issuers’ option, either in person at the office of the Paying Agent or by check
mailed to the Noteholder at the address indicated on the register maintained
by
the Registrar for the Notes.
33
SECTION 2.16. |
Book-Entry
Provisions for Global Notes.
|
(a) Rule
144A
Notes and Other Notes shall be initially represented by one or more Notes in
registered, global form without interest coupons (collectively, the
“Restricted
Global Note”).
Regulation S Notes initially shall be represented by one or more Notes in
registered, global form without interest coupons (collectively, the
“Regulation
S Global Note,”
and,
together with the Restricted Global Note and any other global notes representing
Notes, the “Global
Notes”).
The
Global Notes shall bear legends as set forth in Exhibit
D.
The
Global Notes initially shall (i) be registered in the name of the Depository
or
the nominee of such Depository, in each case for credit to an account of an
Agent Member (or, in the case of the Regulation S Global Notes, of Euroclear
System (“Euroclear”)
and
Clearstream Banking Luxembourg (“Clearstream”)),
(ii)
be delivered to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in Exhibit
B
with
respect to Restricted Global Notes and Exhibit
C
with
respect to Regulation S Global Notes.
Members
of, or direct or indirect 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 Notes, and the Depository may be treated by the Issuers, the Trustee
and
any agent of the Issuers or the Trustee as the absolute owner of the Global
Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall
prevent the Issuers, the Trustee or any agent of the Issuers 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 transfer 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
Section 2.17. In addition, a Global Note shall be exchangeable for Physical
Notes if (i) the Depository (x) notifies the Company that it is unwilling or
unable to continue as depository for such Global Note or (y) has ceased to
be a
clearing agency registered under the Exchange Act, and in either case the
Company thereupon fails to appoint a successor depository; or (ii) the Company,
at its option, notify the Trustee in writing that they elect to cause the
issuance of such Physical Notes; or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Notes. In all cases, Physical
Notes delivered in exchange for any Global Note or beneficial interests therein
shall be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depository (in accordance with its customary
procedures).
(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 Issuers shall execute, and the Trustee shall
upon receipt of a written order from the Issuers authenticate and make available
for delivery, one or more Physical Notes of like tenor and amount.
34
(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 Issuers shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depository in writing in exchange for its beneficial interest in the Global
Notes, an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any
Physical Note constituting a Restricted Note delivered in exchange for an
interest in a Global Note pursuant to paragraph
(b),
(c)
or
(d)
of this
Section 2.16 shall, except as otherwise provided by paragraphs
(a)(i)(x)
and
(c)
of
Section
2.17,
bear
the Private Placement Legend or, in the case of the Regulation S Global Note,
the legend set forth in Exhibit
C,
in each
case, unless the Issuers determine otherwise in compliance with applicable
law.
(f) On
or
prior to the 40th day after the later of the commencement of the offering of
the
Notes represented by the Regulation S Global Note and the issue date of such
Notes (such period through and including such 40th day, the “Restricted
Period”),
a
beneficial interest in a Regulation S Global Note may be transferred to a Person
who takes delivery in the form of an interest in the corresponding Restricted
Global Note only upon receipt by the Trustee of a written certification from
the
transferor to the effect that such transfer is being made (i)(a) to a Person
that the transferor reasonably believes is a Qualified Institutional Buyer
in a
transaction meeting the requirements of Rule 144A or (b) pursuant to another
exemption from the registration requirements under the Securities Act which
is
accompanied by an Opinion of Counsel regarding the availability of such
exemption and (ii) in accordance with all applicable securities laws of any
state of the United States or any other jurisdiction.
(g) Beneficial
interests in the Restricted Global Note may be transferred to a Person who
takes
delivery in the form of an interest in the Regulation S Global Note, whether
before or after the expiration of the Restricted Period, only if the transferor
first delivers to the Trustee a written certificate to the effect that such
transfer is being made in accordance with Regulation S or Rule 144 (if
available) and that, if such transfer occurs prior to the expiration of the
Restricted Period, the interest transferred will be held immediately thereafter
through Euroclear or Clearstream.
(h) Any
beneficial interest in one of the Global Notes that is transferred to a Person
who takes delivery in the form of an interest in another Global Note shall,
upon
transfer, cease to be an interest in such Global Note and become an interest
in
such other Global Note and, accordingly, shall thereafter be subject to all
transfer restrictions and other procedures applicable to beneficial interests
in
such other Global Note for as long as it remains such an interest.
(i) 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.
35
SECTION 2.17. |
Special
Transfer Provisions.
|
(a) Transfers
to Non-QIB Institutional Accredited Investors and Non-U.S.
Persons.
The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note constituting a Restricted Note to any Institutional
Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) the
Registrar shall register the transfer of any Note constituting a Restricted
Note, whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is after the second anniversary of the date of original
issuance thereof or such other date as such Note shall be freely transferable
under Rule 144 as certified in an Officers’ Certificate or (y) (1) in the case
of a transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to the
Registrar a certificate substantially in the form of Exhibit
E
hereto
or (2) in the case of a transfer to a Non-U.S. Person (including a QIB), the
proposed transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit
F
hereto;
provided,
that in
the case of any transfer of a Note bearing the Private Placement Legend for
a
Note not bearing the Private Placement Legend, the Registrar has received an
Officers’ Certificate authorizing such transfer; and
(ii)
if
the
proposed transferor is an Agent Member holding a beneficial interest in a Global
Note, upon receipt by the Registrar of (x) the certificate, if any, required
by
paragraph (i) above and (y) instructions given in accordance with the
Depository’s and the Registrar’s procedures,
whereupon
(a) the Registrar shall reflect on its books and records the date and (if the
transfer does not involve a transfer of outstanding Physical Notes) a decrease
in the principal amount of a Global Note in an amount equal to the principal
amount of the beneficial interest in a Global Note to be transferred, and (b)
the Registrar shall reflect on its books and records the date and an increase
in
the principal amount of a Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note transferred or the Issuers shall
execute and the Trustee shall authenticate and make available for delivery
one
or more Physical Notes of like tenor and amount.
(b) Transfers
to QIBs.
The
following provisions shall apply with respect to the registration or any
proposed registration of transfer of a Note constituting a Restricted Note
to a
QIB (excluding transfers to Non-U.S. Persons):
(i) the
Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on such Holder’s Note
stating, or to a transferee who has advised the Issuers and the Registrar in
writing, that the transferee 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 Issuers 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;
and
36
(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
Global Note, upon receipt by the Registrar of instructions given in accordance
with the Depository’s and the Registrar’s procedures, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the Physical
Notes so transferred.
(c) 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) it has
received the Officers’ Certificate required by paragraph (a)(i) of this Section
2.17, (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Issuers 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 and the Registrar has received an Officers’ Certificate from the
Issuers to such effect.
(d) General.
By its
acceptance of any Note bearing the Private Placement Legend, each Holder of
such
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 for a period of two years copies of all letters, notices
and other written communications received pursuant to Section 2.16 or this
Section 2.17. The Issuers 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 notice to the Registrar.
SECTION 2.18. |
Computation
of Interest.
|
Interest
on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months and actual days elapsed.
ARTICLE
THREE
REDEMPTION
SECTION 3.01. |
Election
To Redeem; Notices to Trustee.
|
If
the
Issuers elect to redeem Notes pursuant to paragraph 5 of the Notes, at least
35
days prior to the Redemption Date (unless a shorter notice shall be agreed
to in
writing by the Trustee) but not more than 65 days before the Redemption Date,
the Issuers shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed and the redemption price, and deliver
to the Trustee an Officers’ Certificate stating that such redemption will comply
with the conditions contained in paragraph 5 of the Notes. Notice given to
the
Trustee pursuant to this Section 3.01 may not be revoked after the time that
notice is given to Noteholders pursuant to Section 3.03.
37
SECTION 3.02. |
Selection
by Trustee of Notes To Be Redeemed.
|
In
the
event that fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed, if the Notes are listed on a national
securities exchange, in accordance with the rules of the principal national
securities exchange on which the Notes are listed, if the Notes are not so
listed, either on a pro rata
basis or
by lot, or such other method as the Trustee shall deem fair and appropriate;
provided
that,
in
the case of such redemption with the proceeds of a Qualified Equity Offering,
the Trustee will select the Notes only on a pro
rata basis
or
on as nearly a pro
rata basis
as
is practicable (subject to procedures of the Depositary). The Trustee shall
promptly notify the Issuers of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed. The Trustee may select for redemption portions of the principal
of the Notes that have denominations larger than $1,000. Notes and portions
thereof the Trustee selects shall be redeemed in amounts of $1,000 or whole
multiples of $1,000. No Notes of $1,000 or less may be redeemed in part. For
all
purposes of this Indenture unless the context otherwise requires, provisions
of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
SECTION 3.03. |
Notice
of Redemption.
|
At
least
30 days, and no more than 60 days, before a Redemption Date, the Issuers shall
mail, or cause to be mailed, a notice of redemption by first-class mail to
each
Holder of Notes to be redeemed at his or her last address as the same appears
on
the registry books maintained by the Registrar pursuant to Section
2.04.
The
notice shall identify the Notes to be redeemed (including the CUSIP numbers
thereof) and shall state:
(1) the
Redemption Date;
(2) the
redemption price and the amount of premium and accrued interest to be
paid;
(3) if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the Redemption Date and upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed portion
will be issued in the name of the Holder thereof upon cancellation of the
original Note;
(4) the
name
and address of the Paying Agent;
(5) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
38
(6) that
unless the Issuers default in making the redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption Date;
and
(7) the
aggregate principal amount of Notes that are being redeemed.
At
the
Issuers’ written request made at least five Business Days prior to the date on
which notice is to be given (unless a shorter period shall have been agreed
in
writing by the Trustee), the Trustee shall give the notice of redemption in
the
Issuers’ name and at the Issuers’ sole expense.
SECTION 3.04. |
Effect
of Notice of Redemption.
|
Once
the
notice of redemption described in Section 3.03 is mailed, Notes called for
redemption become due and payable on the Redemption Date and at the redemption
price, including any premium, plus interest accrued to the Redemption Date.
Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price,
including any premium, plus interest accrued to the Redemption Date;
provided,
that if
the Redemption Date is after a regular record date and on or prior to the
Interest Payment Date, the accrued interest shall be payable to the Holder
of
the redeemed Notes registered on the relevant record date; and provided,
further,
that if
a Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such
Redemption Date to such succeeding Business Day.
SECTION 3.05. |
Deposit
of Redemption Price.
|
On
or
prior to 10:00 A.M., New York City time, on each Redemption Date, the Issuers
shall deposit with the Paying Agent in immediately available funds money
sufficient to pay the redemption price of, including premium, if any, and
accrued interest on all Notes to be redeemed on that date other than Notes
or
portions thereof called for redemption on that date which have been delivered
by
the Issuers to the Trustee for cancellation.
On
and
after any Redemption Date, if money sufficient to pay the redemption price
of,
including premium, if any, and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph,
the
Notes called for redemption will cease to accrue interest and the only right
of
the Holders of such Notes will be to receive payment of the redemption price
of
and, subject to the first proviso in Section 3.04, accrued and unpaid interest
on such Notes to the Redemption Date. If any Note surrendered for redemption
shall not be so paid, interest will be paid, from the Redemption Date until
such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case at the rate and in the manner
provided in the Notes.
SECTION 3.06. |
Notes
Redeemed in Part.
|
Upon
surrender of a Note that is redeemed in part, the Trustee shall authenticate
for
the Holder thereof a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
39
ARTICLE
FOUR
COVENANTS
SECTION 4.01. |
Payment
of Notes.
|
The
Issuers shall pay the principal of and interest on the Notes on the dates and
in
the manner provided in the Notes and this Indenture. An installment of principal
or interest shall be considered paid on the date it is due if the Trustee or
Paying Agent holds on that date money designated for and sufficient to pay
such
installment.
The
Issuers shall pay interest on overdue principal (including post-petition
interest in a proceeding under any Bankruptcy Law), and overdue interest, to
the
extent lawful, at the rate specified in the Notes.
SECTION 4.02. |
Maintenance
of Office or Agency.
|
(a) The
Issuers shall maintain in the Borough of Manhattan, the City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of
the
Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Issuers
in
respect of the Notes and this Indenture may be served. The Issuers shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuers 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.
(b) The
Issuers may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however,
that no
such designation or rescission shall in any manner relieve the Issuers of their
obligation to maintain an office or agency in the Borough of Manhattan, the
City
of New York for such purposes. The Issuers shall give prompt written notice
to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
(c) The
Issuers hereby designate the Corporate Trust Office of the Trustee as one such
office or agency of the Issuers in accordance with Section 2.04.
SECTION 4.03. |
Legal
Existence.
|
Subject
to Article Five, the Issuers shall do or cause to be done all things necessary
to preserve and keep in full force and effect (i) their respective legal
existences, and the corporate, partnership or other existence of each Subsidiary
of the Company, in accordance with the respective organizational documents
(as
the same may be amended from time to time) of each Subsidiary of the Company
and
the material rights (charter and statutory), licenses and franchises of the
Issuers and their Subsidiaries; provided,
that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries if the Board of Directors of the Company shall determine that
the
preservation thereof is no longer desirable in the conduct of the business
of
the Company and its Subsidiaries taken as a whole, and that the loss thereof
is
not adverse in any material respect to the Holders.
40
SECTION 4.04. |
Maintenance
of Properties; Insurance;
|
Compliance
with Law
(a) The
Company shall, and shall cause each of its Subsidiaries to, at all times cause
all material properties used or useful in the conduct of their respective
businesses to be maintained and kept in good condition, repair and working
order
(reasonable wear and tear excepted) and supplied with all necessary equipment,
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto.
(b) The
Company shall maintain, and shall cause to be maintained for each of its
Subsidiaries, insurance covering such risks as are usually and customarily
insured against by corporations similarly situated, in such amounts as shall
be
customary for corporations similarly situated and with such deductibles and
by
such methods as shall be customary and reasonably consistent with past
practice.
(c) The
Company shall, and shall cause Parent and each of its Subsidiaries to, comply
with all statutes, laws, ordinances or government rules and regulations to
which
they are subject, noncompliance with which would materially adversely affect
the
business, prospects, earnings, properties, assets or financial condition of
Parent and its Subsidiaries taken as a whole.
SECTION 4.05. |
Waiver
of Stay, Extension or Usury Laws.
|
Each
of
the Issuers and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit
or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive any of the Issuers and the Guarantors from paying
all
or any portion of the principal of, premium, if any, and/or interest on the
Notes as contemplated herein, wherever enacted, now or at any time hereafter
in
force, or which may affect the covenants or the performance of this Indenture;
and (to the extent that they may lawfully do so) each of the Issuers and the
Guarantors hereby expressly waives all benefit or advantage of any such law,
and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every
such power as though no such law had been enacted.
SECTION 4.06. |
Compliance
Certificate.
|
(a) The
Issuers shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers’ Certificate stating that a review of the activities of
the Company and its Subsidiaries during such fiscal year has been made under
the
supervision of the signing Officers with a view to determining whether the
Issuers and the Guarantors have kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Issuers
and the Guarantors have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and are not in default in the performance
or observance of any of the terms, provisions and conditions hereof (or, if
a
Default shall have occurred, describing all such Defaults of which he or she
may
have knowledge and what action they are taking or propose to take with respect
thereto) and that to the best of his or her knowledge no event has occurred
and
remains in existence by reason of which payments on account of the principal
of
or interest, if any, on the Notes is prohibited or if such event has occurred,
a
description of the event and what action the Issuers and the Guarantors are
taking or propose to take with respect thereto.
41
(b) The
Company will deliver to the Trustee, within 30 days after the occurrence
thereof, an Officers’ Certificate detailing any Default of which it is aware,
its status and what action the Company is taking or proposes to take with
respect to such Default.
(c) The
Issuers’ fiscal years currently end on the Sunday closest to January 31. The
Issuers will provide written notice to the Trustee of any change in their
respective fiscal years.
SECTION 4.07. |
Taxes.
|
The
Issuers and the Guarantors shall, and shall cause each of their respective
Subsidiaries to, pay prior to delinquency all material taxes, assessments,
and
governmental levies except as contested in good faith and by appropriate
proceedings.
SECTION 4.08. |
Repurchase
at the Option of Holders upon
Change
|
of
Control
(a) If
a
Change of Control occurs, each Holder of Notes will have the right to require
the Company to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of that Holder’s Notes pursuant to the offer described below (the
“Change
of Control Offer”)
and
the other procedures required by this Indenture. In the Change of Control Offer,
the Company will offer a payment (the “Change
of Control Payment”)
in
cash equal to 101% of the aggregate principal amount of the Notes purchased
plus
accrued and unpaid interest on such Notes, if any, to the date of purchase
(the
“Change
of Control Payment Date”).
(b) Within
30
days following the date on which a Change of Control occurs, the Company shall
send, by first class mail, postage prepaid, a notice to each Holder of Notes
at
its last registered address and the Trustee, which notice shall govern the
terms
of the Change of Control Offer. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Change of Control Offer. Such notice shall state:
(1) |
that
the Change of Control Offer is being made pursuant to this Section
4.08
and that all Notes validly tendered and not withdrawn will be accepted
for
payment;
|
(2) |
the
Change of Control Payment and the Change of Control Payment Date
(which
shall be no earlier than 30 days nor later than 60 days from the
date such
notice is mailed, other than as may be required by
law);
|
(3) |
that
any Note not tendered will continue to accrue
interest;
|
42
(4) |
that,
unless the Company defaults in making payment therefor, any Note
accepted
for payment pursuant to the Change of Control Offer shall cease to
accrue
interest after the Change of Control Payment
Date;
|
(5) |
that
Holders electing to have a Note purchased pursuant to a Change of
Control
Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” on the reverse of the Note completed,
to the Paying Agent and Registrar for the Notes at the address specified
in the notice prior to the close of business on the third Business
Day
prior to the Change of Control Payment
Date;
|
(6) |
that
Holders will be entitled to withdraw their election if the Paying
Agent
receives, not later than the second Business Day prior to the Change
of
Control Payment Date, a telegram, telex, facsimile transmission or
letter
setting forth the name of the Holder, the principal amount of the
Notes
the Holder delivered for purchase and a statement that such Holder
is
withdrawing its election to have such Note
purchased;
|
(7) |
that
Holders whose Notes are purchased only in part will be issued new
Notes in
a principal amount equal to the unpurchased portion of the Notes
surrendered; provided,
however,
that each Note purchased and each new Note issued shall be in a principal
amount of $1,000 or integral multiples thereof;
and
|
(8) |
the
circumstances and relevant facts regarding such Change of
Control.
|
(c) On
the
Change of Control Payment Date, the Company will, to the extent lawful: (x)
accept for payment all Notes or portions of Notes (in integral multiples of
$1,000) properly tendered in the Change of Control Offer; (y) deposit with
the
Paying Agent an amount equal to the Change of Control Payment for all Notes
or
portions of Notes tendered; and (z) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased by
the
Company.
(d) The
Paying Agent will promptly mail to each Holder of Notes tendered the Change
of
Control Payment for them, and the Trustee will promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal
in
principal amount to any unpurchased portion of the Notes surrendered, if any.
Each such new Note will be in a principal amount of $1,000 or an integral
multiple of $1,000.
(e) Notwithstanding
the foregoing, the Company will not be required to make a Change of Control
Offer, as provided above, if, in connection with or in contemplation of any
Change of Control, it or a third party has made an offer to purchase (an
“Alternate
Offer”)
any
and all Notes validly tendered at a cash price equal to or higher than the
Change of Control Payment (including by making a Change of Control Offer prior
to the anticipated completion of a Change of Control) and has purchased all
Notes properly tendered in accordance with the terms of such Alternate Offer.
The Alternate Offer must comply with all the other provisions applicable to
the
Change of Control Offer, shall remain, if commenced prior to the Change of
Control, open for acceptance until the consummation of the Change of Control
and
must permit Holders to withdraw any tenders of Notes made into the Alternate
Offer until the final expiration or consummation thereof.
43
(f) The
Company will comply, or cause any third party making an Alternate Offer to
comply, with the requirements of Rule 14e-1 under the Exchange Act and any
other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes pursuant
to a Change of Control Offer or an Alternate Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of
this Section
4.08,
the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the provisions of
this Section
4.08
by
virtue thereof.
SECTION 4.09. |
Limitation
on Incurrence of Additional Indebtedness.
|
(a) The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, incur any Indebtedness other than Permitted Indebtedness.
Notwithstanding the foregoing, the Company will not permit PCA Finance to incur
any Indebtedness other than the Notes and guarantees or co-issuances of
Indebtedness of the Company permitted under this Indenture.
(b) The
Company will not, directly or indirectly, in any event incur any Indebtedness
that purports to be by its terms (or by the terms of any agreement governing
such Indebtedness) contractually subordinated in right of payment to any other
Indebtedness of the Company unless such Indebtedness is also by its terms (or
on
the terms of any agreement governing such Indebtedness) contractually
subordinated in right of payment to the Notes to the same extent and in the
same
manner as such Indebtedness is subordinated to such other Indebtedness of the
Company.
(c) No
Subsidiary Guarantor will, directly or indirectly, in any event incur any
Indebtedness that purports to be by its terms (or by the terms of any agreement
governing such Indebtedness) contractually subordinated in right of payment
to
any other Indebtedness of such Guarantor unless such Indebtedness is also by
its
terms (or on the terms of any agreement governing such Indebtedness)
contractually subordinated in right of payment to the Guarantee of such
Guarantor to the same extent and in the same manner as such Indebtedness is
subordinated to such other Indebtedness of such Guarantor.
(d) Notwithstanding
any other provision in this Section
4.09,
the
maximum amount of Indebtedness that the Company or any Subsidiary of the Company
may incur pursuant to this Section 4.09 shall not be deemed to be exceeded
as a
result of fluctuations in the exchange rates of currencies. The outstanding
principal amount of any particular Indebtedness shall be counted only once
and
any obligation arising under any guarantee, Lien, letter of credit or similar
instrument supporting such Indebtedness shall be disregarded, so long as the
obligor is permitted to incur such obligation. In the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted
Indebtedness described in clauses
(3)
through
(15)
of the
definition of Permitted Indebtedness, the Company shall, in its sole discretion,
classify such item of Indebtedness in any manner that complies with this
Section
4.09
(provided,
that
all Indebtedness outstanding under the Credit Agreement and the Letters of
Credit Facility on the Issue Date shall be deemed to have been incurred pursuant
to clause (3)
and
clause
(10),
respectively, of the definition of Permitted Indebtedness) and may later
reclassify such item into any one or more of the categories of Permitted
Indebtedness described in clauses
(3)
through
(15)
of the
definition of Permitted Indebtedness (provided,
that at
the time of reclassification it meets the criteria in such category or
categories).
44
SECTION 4.10. |
Limitation
on Restricted Payments.
|
The
Company will not, and will not cause or permit any of its Subsidiaries to,
directly or indirectly, make any Restricted Payment; provided
that
this provision does not prohibit
(1) the
payment of any dividend or distribution or the making of any loan or advance
to
Parent to enable Parent to pay its reasonable general administrative costs
and
expenses including, without limitation, in respect of franchise taxes and other
fees required to maintain its existence and administrative, legal and accounting
services provided by third parties, in an aggregate amount not to exceed
$250,000 per fiscal year; or
(2) Tax
Distributions.
SECTION 4.11. |
Limitation
on Liens.
|
The
Company shall not, and shall not permit any of its Subsidiaries to, directly
or
indirectly, incur or permit or suffer to exist any Lien (other than Permitted
Liens) of any nature whatsoever on any assets of the Company or any of its
Subsidiaries (including Capital Stock of a Subsidiary of the Company), whether
owned at the Issue Date or thereafter acquired, or any proceeds therefrom,
or
assign or otherwise convey any right to receive income or profits
therefrom.
SECTION 4.12. |
Limitation
on Asset Sales.
|
(a) The
Company will not, and will not permit any of its Subsidiaries to, consummate
an
Asset Sale unless
(1) |
except
with respect to an Event of Loss, the Company or the applicable Subsidiary
of the Company receives consideration at the time of such Asset Sale
at
least equal to the fair market value of the assets that are sold
or
otherwise disposed of, as reasonably determined in good faith by
the
Company’s Board of Directors; and
|
(2) |
except
with respect to an Event of Loss, at least 75% of the consideration
received by the Company or the applicable Subsidiary of the Company
from
the Asset Sale is in the form of cash or Cash Equivalents, Replacement
Assets or a combination of the foregoing, and is received at the
time of
the Asset Sale.
|
45
For
the
purposes of clause
(2)
above,
(a) the amount of any Indebtedness shown on the most recent applicable balance
sheet of the Company or the applicable Subsidiary of the Company, other than
Indebtedness that is by its terms subordinated in right of payment to the Notes
or the Guarantees, that is assumed by the Transferee of any such assets, and
(b)
any notes or other obligations received by the Company or the applicable
Subsidiary of the Company from such transferee or purchaser that are converted
by the Company or such Subsidiary of the Company into cash or Cash Equivalents
within 60 days after receipt (to the extent of any cash or Cash Equivalents
received in that conversion), will be deemed to be cash received at the time
of
the Asset Sale.
(b) Additionally,
the Company or such Subsidiary of the Company, as the case may be, may apply
the
Net Cash Proceeds from each Asset Sale to:
(1) |
repay
obligations under the Credit Agreement or the Letters of Credit
Facility;
|
(2) |
repay
any Indebtedness (other than any Indebtedness that is subordinated
in
right of payment to the Notes or any Guarantee) that was secured
by the
assets sold in such Asset Sale;
|
(3) |
make
an investment in or expenditures for assets (excluding securities
other
than Capital Stock of any Person that (A) becomes a Subsidiary of
the
Company or (B) is merged, consolidated or amalgamated with or into,
or
Transfers all or substantially all of its assets to, or is liquidated
into
the Company or any of its Subsidiaries) that replace the assets that
were
the subject of the Asset Sale or in assets (excluding securities
other
than Capital Stock of any Person that (A) becomes a Subsidiary of
the
Company or (B) is merged, consolidated or amalgamated with or into,
or
Transfers all or substantially all of its assets to, or is liquidated
into
the Company or any of its Subsidiaries) that will be used in the
Permitted
Business (“Replacement
Assets”);
or
|
(4) |
purchase
Notes (through open market purchases, privately negotiated transactions
or
otherwise) or redeem Notes as permitted under Paragraph 5 of the
Notes.
|
Pending
the final application of any such Net Cash Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds
in
any manner that is not prohibited by this Indenture.
(c) Any
Net
Cash Proceeds that the Company does not apply, or decides not to apply, in
accordance with Section 4.12(b) will constitute a “Net
Proceeds Offer Amount.”
The
366th day after an Asset Sale or any earlier date on which the Board of
Directors of the Company determines not to apply the Net Cash Proceeds in
accordance with the preceding paragraph is a “Net
Proceeds Offer Trigger Date.”
When
the aggregate Net Proceeds Offer Amount is equal to or exceeds $5.0 million,
the
Company must make an offer to purchase (the “Net
Proceeds Offer”)
on a
date that is not less than 30 nor more than 45 days following the applicable
Net
Proceeds Offer Trigger Date, from all Holders of Notes on a pro rata
basis,
the maximum principal amount of Notes that may be purchased with the Net
Proceeds Offer Amount; provided
that the
Company may, at its option, make such Net Proceeds Offer at any time prior
to
the applicable Net Proceeds Offer Trigger Date. The offer price for Notes in
any
Net Proceeds Offer will be equal to 100% of the principal amount of the Notes
to
be purchased, plus any accrued and unpaid interest on such Notes, if any, to
the
date of purchase.
46
(d) The
following events will be deemed to constitute an Asset Sale and the Net Cash
Proceeds from such Asset Sale must be applied in accordance with this Section
4.12:
(1) |
in
the event any non-cash consideration received by the Company or any
of its
Subsidiaries in connection with any Asset Sale is converted into
or sold
or otherwise disposed of for cash,
or
|
(2) |
in
the event of the Transfer of substantially all, but not all, of the
assets
of the Company and its Subsidiaries as an entirety to a Person in
a
transaction permitted under Section 5.01, and as a result thereof
the
Company is no longer an obligor on the Notes, the successor corporation
shall be deemed for purposes of this Section 4.12 to have sold the
assets
of the Company and its Subsidiaries not so Transferred, and shall
comply
with the provisions of this Section 4.12 with respect to such deemed
sale
as if it were an Asset Sale. In addition, the fair market value of
such
assets of the Company or its Subsidiaries deemed to be sold shall
be
deemed to be Net Cash Proceeds for purposes of this Section
4.12.
|
(e) The
Company shall mail a notice of a Net Proceeds Offer by first class mail, postage
prepaid, to the record Holders as shown on the register of Holders within 30
days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee,
containing all instructions and materials necessary to enable such Holders
to
tender Notes pursuant to the Net Proceeds Offer and shall state the following
terms:
(1) |
that
the Net Proceeds Offer is being made pursuant to this Section 4.12,
that
all Notes tendered will be accepted for payment; provided,
however,
that if the aggregate principal amount of Notes tendered in a Net
Proceeds
Offer plus accrued interest at the expiration of such offer exceeds
the
Net Proceeds Offer Amount, the Company shall select on a pro rata
basis, the Notes to be purchased (with such adjustments as may be
deemed
appropriate by the Company so that only Notes in denominations of
$1,000,
as applicable, or multiples thereof shall be purchased), and that
the Net
Proceeds Offer shall remain open for a period of 20 business days
or such
longer period as may be required by
law;
|
(2) |
the
offer price (including the amount of accrued interest) and the Net
Proceeds Offer date of payment (“Net
Proceeds Offer Payment Date”),
which shall be not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date and which shall be at
least
five business days after the Trustee receives notice thereof from
the
Company;
|
47
(3) |
that
any Note not tendered will continue to accrue
interest;
|
(4) |
that,
unless the Company defaults in making payment therefor, any Note
accepted
for payment pursuant to the Net Proceeds Offer shall cease to accrue
interest after the Net Proceeds Offer Payment
Date;
|
(5) |
that
Holders electing to have a Note purchased pursuant to a Net Proceeds
Offer
will be required to surrender such Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, to the
Paying Agent at the address specified in the notice prior to the
close of
business on the business day prior to the Net Proceeds Offer Payment
Date;
|
(6) |
that
Holders will be entitled to withdraw their election if the Paying
Agent
receives, not later than the second business day prior to the Net
Proceeds
Offer Payment Date, a telegram, telex, facsimile transmission or
letter
setting forth the name of such Holder, the principal amount of the
Notes
such Holder delivered for purchase and a statement that such Holder
is
withdrawing his election to have such Note purchased;
and
|
(7) |
that
Holders whose Notes are purchased only in part will be issued new
Notes in
a principal amount equal to the unpurchased portion of the Note
surrendered;
provided,
however,
that each Note purchased and each new Note issued shall be in an
original
principal amount of $1,000 or integral multiples
thereof.
|
(f) On
or
before the Net Proceeds Offer Payment Date, the Company shall (1) accept for
payment Notes or portions thereof (in integral multiples of $1,000) validly
tendered pursuant to the Net Proceeds Offer, (2) deposit with the Paying Agent
in accordance with Section 2.15 U.S. Dollars sufficient to pay the purchase
price plus accrued and unpaid interest, if any, of all Notes to be purchased
and
(3) deliver to the Trustee Notes so accepted together with an Officers’
Certificate stating the Notes or portions thereof being purchased by the
Company. Upon receipt by the Paying Agent of the monies specified in
clause
(b)
above
and a copy of the Officers’ Certificate specified in clause
(3)
above,
the Paying Agent shall promptly mail to the Holders of Notes so accepted payment
in an amount equal to the purchase price plus accrued and unpaid interest,
if
any, out of the funds deposited with the Paying Agent in accordance with the
preceding sentence. The Trustee shall promptly authenticate and mail to such
Holders new Notes equal in principal amount to any unpurchased portion of the
Notes surrendered. Upon the payment of the purchase price for the Notes accepted
for purchase, the Trustee shall return the Notes purchased to the Company for
cancellation. Any monies remaining after the purchase of Notes pursuant to
a Net
Proceeds Offer shall be returned within three business days by the Trustee
to
the Company except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven. For purposes of this Section 4.12, the Trustee shall
act as the Paying Agent.
48
(g) To
the
extent the amount of Notes tendered pursuant to any Net Proceeds Offer is less
than the amount of Net Cash Proceeds subject to such Net Proceeds Offer, the
Company may use any remaining portion of such Net Cash Proceeds not required
to
fund the repurchase of tendered Notes for general corporate purposes and such
Net Proceeds Offer Amount shall be reset to zero.
(h) The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
and regulations are applicable in connection with the repurchase of Notes
pursuant to a Net Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.12, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under
the
provisions of this Section 4.12 by virtue thereof.
SECTION 4.13. |
Limitation
on Dividend and Other Payment
|
Restrictions
Affecting
Subsidiaries.
The
Company will not, and will not cause or permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Subsidiary of the Company to:
(A) |
pay
dividends or make any other distributions on or in respect of its
Capital
Stock to the Company or any other Subsidiary of the
Company;
|
(B) |
make
loans or advances or pay any Indebtedness or other obligations owed
to the
Company or any other Subsidiary of the Company;
or
|
(C) |
Transfer
any of its assets to the Company or any other Subsidiary of the
Company,
|
except
for
(1) |
such
encumbrances or restrictions existing under or by reason of applicable
law;
|
(2) |
such
encumbrances or restrictions under this Indenture and the
Notes;
|
(3) |
customary
provisions in any contract limiting the assignment of such
contract;
|
(4) |
such
encumbrances or restrictions under agreements existing at the time
of
acquisition of any Person or the assets of the Person so acquired
by the
Company or any of its Subsidiaries, which encumbrances or restrictions
are
not applicable to any Person, or the assets of any Person, other
than the
Person or the assets or Capital Stock of the Person so
acquired;
|
(5) |
such
encumbrances or restrictions under agreements existing on the Issue
Date;
|
49
(6) |
restrictions
imposed by any agreement to sell assets permitted under this Indenture
relating to such assets pending the closing of such
sale;
|
(7) |
Liens
permitted under Section 4.11 to the extent such Liens restrict the
Transfer of assets subject thereto;
|
(8) |
restrictions
on cash or other deposits or net worth under contracts entered into
in the
ordinary course of business;
|
(9) |
such
encumbrances or restrictions under the Credit Agreement and the Letters
of
Credit Facility as in effect on the Issue
Date;
|
(10) |
such
encumbrances or restrictions under agreements governing Indebtedness
of a
Foreign Subsidiary incurred in compliance with Section 4.09, which
encumbrances or restrictions are not applicable to the Company or
any
Subsidiary of the Company other than with respect to the Capital
Stock of
such Foreign Subsidiary;
|
(11) |
such
encumbrances or restrictions under any agreement relating to a Sale
and
Leaseback Transaction or Capitalized Lease Obligation, but only on
the
property subject to such transaction or lease and only to the extent
that
such restrictions or encumbrances are customary with respect to such
arrangements;
|
(12) |
customary
restrictions imposed on the Transfer of copyrighted or patented materials;
and
|
(13) |
such
encumbrances and restrictions in any agreement amending or Refinancing
any
agreement referred to in clause
(2),
(4),
(5)
or
(9)
above, which encumbrances and restrictions are not, taken as a whole,
more
restrictive in any material respect than the encumbrances and restrictions
in such agreement prior to the amendment or
Refinancing.
|
SECTION 4.14. |
Limitation
on Transactions with Affiliates.
|
(a) The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, enter into or permit to exist any transaction or series of related
transactions with, or for the benefit of, any of its Affiliates (each, an
“Affiliate Transaction”), other than Affiliate Transactions described in Section
4.14(b), unless
(1) |
the
Affiliate Transaction is on terms, taken as a whole, that are no
less
favorable to the Company or the relevant Subsidiary of the Company
than
those terms that would reasonably have been obtained at that time
in a
comparable transaction by the Company or the relevant Subsidiary
of the
Company and an unrelated Person;
and
|
(2) |
the
Company delivers to the Trustee
|
50
(a) |
with
respect to any Affiliate Transaction involving aggregate consideration
in
excess of $1.0 million, a resolution of the Board of Directors of
the
Company that states that such Board of Directors has determined that
such
Affiliate Transaction complies with this Section 4.14 and that such
Affiliate Transaction has been approved by a majority of the Disinterested
Members of such Board of Directors, if there are any such Disinterested
Members; and
|
(b) |
with
respect to any Affiliate Transaction involving aggregate consideration
in
excess of $5.0 million, or in excess of $1.0 million and not approved
by a
majority of the Disinterested Members of the Board of Directors of
the
Company, a favorable opinion from an Independent Financial Advisor
as to
the fairness of such Affiliate Transaction to the Company or the
relevant
Subsidiary of the Company, as the case may be, from a financial point
of
view.
|
(b) The
restrictions set forth in Section 4.14(a) do not apply to
(1) |
transactions
exclusively between or among the Company and/or one or more of its
Subsidiaries; provided,
in each case, such transaction is not otherwise prohibited by this
Indenture and that no Affiliate of the Company (other than another
Subsidiary of the Company) owns Capital Stock in any such Subsidiary
of
the Company;
|
(2) |
any
agreement in effect on the Issue Date as in effect on the Issue Date
or as
thereafter amended in a manner which is, taken as a whole, in the
good
faith judgment of the Board of Directors of the Company not materially
less favorable to the Company or such Subsidiary of the Company as
the
original agreement as in effect on the Issue
Date;
|
(3) |
any
employment, compensation, benefit or indemnity agreements, arrangements
or
plans in respect of any officer, director, employee or consultant
of the
Company or any of its Subsidiaries entered into in the ordinary course
of
business and approved by the Board of Directors of the
Company;
|
(4) |
loans
and advances permitted by clause
(5)
of
the definition of Permitted
Investments;
|
(5) |
the
issuance and sale of Qualified Capital Stock;
and
|
(6) |
Restricted
Payments permitted by Section
4.10.
|
51
SECTION 4.15. |
Limitation
on Sale and Leaseback Transactions.
|
The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, enter into any Sale and Leaseback Transaction; provided,
that
the Company or any of its Subsidiaries may enter into a Sale and Leaseback
Transaction if:
(1) The
Company or such Subsidiary of the Company could have (a) incurred the
Indebtedness attributable to such Sale and Leaseback Transaction pursuant to
Section 4.09 and (b) incurred a Lien to secure such Indebtedness in compliance
with Section
4.11;
(2) the
gross
cash proceeds of such Sale and Leaseback Transaction are at least equal to
the
fair market value of the asset that is the subject of such Sale and Leaseback
Transaction; and
(3) the
Transfer of assets in such Sale and Leaseback Transaction is permitted by,
and
the Company or the applicable Subsidiary of the Company applies the proceeds
of
such transaction in accordance with, Section 4.12.
SECTION 4.16. |
Additional
Note Guarantees
|
(a) If
the
Company or any of its Subsidiaries, acquires or creates another Subsidiary
(other than any Foreign Subsidiary) after the date of this Indenture, or
Transfers more than $1,000 to any Subsidiary of the Company (other than a
Foreign Subsidiary) that is not a Guarantor as of the Issue Date, then that
newly acquired, created or capitalized Domestic Subsidiary must become a
Guarantor and shall, within 30 days of the date on which it was acquired,
created or capitalized: (i) execute and deliver to the Trustee a supplemental
indenture in form reasonably satisfactory to the Trustee pursuant to which
such
Domestic Subsidiary of the Company shall unconditionally guarantee all of the
Company’s obligations under the Notes and this Indenture on the terms set forth
in this Indenture; (ii) take such actions necessary or as the Collateral Agent
reasonably determines to be advisable to grant to the Collateral Agent for
the
benefit of the Holders a perfected security interest in the assets and capital
stock of such new Domestic Subsidiary, subject to the Permitted Liens, including
the filing of Uniform Commercial Code financing statements in such jurisdictions
as may be required by the Security Agreement or by law or as may be reasonably
requested by the Collateral Agent; (iii) take such further action and
execute and deliver such other documents specified in this Indenture or
otherwise reasonably requested by the Trustee or the Collateral Agent to
effectuate the foregoing; and (iv) deliver to the Trustee an Opinion of Counsel
that such supplemental indenture and any other documents required to be
delivered have been duly authorized, executed and delivered by such Domestic
Subsidiary and constitute legal, valid, binding and enforceable obligations
of
such Domestic Subsidiary and an Opinion of Counsel that complies with the second
paragraph of Section 12.02.
Thereafter,
such Subsidiary of the Company shall be a Guarantor under this Indenture until
released in accordance with the terms of this Indenture.
(b) Notwithstanding
Section 4.16(a), any Guarantee will provide by its terms that it will be
automatically and unconditionally released and discharged under the
circumstances described in Article Ten.
52
SECTION 4.17. |
Conduct
of Business.
|
The
Company and its Subsidiaries will not engage in any businesses that are not
the
same, similar, ancillary or related to the businesses in which the Company
and
its Subsidiaries are engaged on the Issue Date (“Permitted
Business”).
PCA
Finance will not engage in any business or activities other than as necessary
(1) to maintain its corporate existence, (2) to perform its obligations under
the Notes and this Indenture and (3) to guarantee or co-issue Indebtedness
as
permitted by Section 4.09(a).
SECTION 4.18. |
Reports
to Holders
|
(a) Whether
or not required by the Commission, so long as any Notes are outstanding, the
Company must furnish to the Holders of Notes, within the time periods specified
in the Commission’s rules and regulations, and make available to securities
analysts and potential investors upon request
(1) |
all
quarterly and annual financial information that would be required
to be
contained in a filing with the Commission on Forms 10-Q and 10-K
if the
Company were required to file such forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”
and, with respect to the annual information only, a report on the
annual
financial statements by the Company’s certified independent accountants;
and
|
(2) |
all
current reports that would be required to be filed with the Commission
on
Form 8-K if the Company were required to file such
reports.
|
(b) In
addition, whether or not required by the Commission, the Company will file
a
copy of all information and reports referred to above with the Commission for
public availability within the time periods specified in the Commission’s rules
and regulations (unless the Commission will not accept such a filing) and make
such information available to security analysts and prospective investors upon
request.
SECTION 4.19. |
Impairment
of Security Interest.
|
Subject
to the Intercreditor Agreement, neither the Issuers nor any of their
Subsidiaries shall take or omit to take any action which would adversely affect
or impair in any material respect the Liens in favor of the Collateral Agent
with respect to the Collateral. Neither the Issuers nor any of the Domestic
Subsidiaries shall grant to any Person (other than the Collateral Agent), or
permit any Person (other than the Collateral Agent), to retain any interest
whatsoever in the Collateral other than Permitted Liens. Neither the Company
nor
any of its Subsidiaries shall enter into any agreement that requires the
proceeds received from any sale of Collateral to be applied to repay, redeem,
defease or otherwise acquire or retire any Indebtedness of any Person, other
than as permitted by this Indenture, the Notes, the Intercreditor Agreement
and
the Collateral Agreements. The Issuers shall, and shall cause each Guarantor
to,
at their sole cost and expense, execute and deliver all such agreements and
instruments as the Collateral Agent or the Trustee may reasonably request to
more fully or accurately describe the property intended to be Collateral or
the
obligations intended to be secured by the Collateral Agreements. The Issuers
shall, and shall cause each Guarantor to, at their sole cost and expense, file
any such notice filings or other agreements or instruments as may be reasonably
necessary or desirable under applicable law to perfect the Liens created by
the
Collateral Agreements to the extent required by the Collateral Agreements,
subject to Permitted Liens.
53
SECTION 4.20. |
Real
Estate Mortgages and Filings.
|
With
respect to any fee interest in any real property (individually and collectively,
the “Premises”)
(a)
acquired by an Issuer or a Domestic Subsidiary after the Issue Date or (b)
held
by any Issuer or Domestic Subsidiary on the Issue Date, in each case, with
a
Fair Market Value, of greater than $500,000, within 90 days of the Issue Date
or
acquisition thereof, as the case may be:
(1) |
the
Company shall deliver to the Collateral Agent, as mortgagee or
beneficiary, fully executed counterparts of Mortgages, each dated
as of
the date within 90 days of the Issue Date or the date of acquisition
of
such property, as the case may be, duly executed by the Company or
the
applicable Domestic Subsidiary, together with evidence of the completion
(or reasonably satisfactory arrangements for the completion), of
all
recordings and filings of such Mortgage as may be necessary to create
a
valid, perfected Lien, subject to Permitted Liens and the Intercreditor
Agreement, against the properties purported to be covered
thereby;
|
(2) |
the
Company shall deliver to the Collateral Agent mortgagee’s title insurance
policies in favor of the Collateral Agent, as mortgagee for the ratable
benefit of the Collateral Agent, the Trustee and the Holders in an
amount
equal to 100% of the Fair Market Value of the Premises purported
to be
covered by the related Mortgage, insuring that title to such property
is
marketable and that the interests created by the Mortgage constitute
valid
Liens thereon free and clear of all Liens, defects and encumbrances
other
than Permitted Liens, and shall be accompanied by evidence of the
payment
in full of all premiums thereon;
and
|
(3) |
the
Company shall deliver to the Collateral Agent, with respect to each
of the
covered Premises, the most recent survey of such Premises, together
with either (i) an
updated survey certification in favor of the Trustee and the Collateral
Agent from the applicable surveyor stating that, based on a visual
inspection of the property and the knowledge of the surveyor, there
has
been no change in the facts depicted in the survey or (ii) an
affidavit from the Company stating that there has been no change,
other
than, in each case, changes that do not materially adversely affect
the
use by the Company and its Subsidiaries of such Premises for the
Company’s
business as so conducted, or intended to be conducted, at such
Premises.
|
54
SECTION 4.21. |
Limitation
of Prepayment of Qualified Vendor Payables.
|
The
Company shall not make any payment with respect to any Qualified Vendor Payables
unless such Qualified Vendor Payable is replaced by another Qualified Vendor
Payable so that in no event will the aggregate amount of Qualified Vendor
Payables be less than $20.0 million (as reduced from time to time in accordance
with the provision below).
The
Company shall be permitted to reduce its outstanding Qualified Vendor Payables;
provided,
however,
that
during any twelve month period the aggregate reduction of Qualified Vendor
Payables shall not exceed $5.0 million and before making any such payment (A)
no
Default or Event of Default has occurred and is continuing or would occur after
giving effect to such payment and (B) the Company’s Consolidated EBITDA for the
most recent Four-Quarter Period is at least $50.0 million.
ARTICLE
FIVE
SUCCESSOR
CORPORATION
SECTION 5.01. |
Merger,
Consolidation and Sale of Assets.
|
(a) The
Company will not, directly or indirectly, consolidate or merge with or into
another Person (whether or not the Company is the surviving Person), or Transfer
all or substantially all of the Company’s assets (determined on a consolidated
basis for the Company and its Subsidiaries), in one or more related
transactions, to another Person, unless
(1) |
either
(x) the Company is the surviving Person or (y) the Person (the
“Surviving
Person”)
formed by or surviving any such consolidation or merger (if other
than the
Company) or to which such Transfer has been made is a corporation
or
limited liability company organized or existing under the laws of
the
United States, any State thereof or the District of Columbia and
expressly
assumes all of the obligations of the Company under (i) the Notes
and this
Indenture pursuant to a supplemental indenture reasonably satisfactory
to
the Trustee and (ii) the Collateral Agreements by amendment, supplement
or
other instrument (in form and substance reasonably satisfactory to
the
Trustee and the Collateral Agent), and in connection therewith shall
cause
such instruments to be filed and recorded in such jurisdictions and
take
such other actions as may be reasonably required by applicable law
to
perfect or continue the perfection of the Lien created under the
Collateral Agreements on the Collateral owned by or transferred to
the
Surviving Person by the filing of financing statements or obtaining
control under the applicable Uniform Commercial Code, subject to
the
Intercreditor Agreement;
|
(2) |
immediately
after such transaction no Default exists (including, without limitation,
after giving effect to any Indebtedness incurred or Liens incurred
or
granted in connection with such transaction);
and
|
55
(3) |
the
Company or the Surviving Person, as the case may be, will, on the
date of
such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
had
occurred at the beginning of the applicable Four-Quarter Period,
have a
Consolidated Fixed Charge Coverage Ratio of at least 2.0 to
1.0.
|
The
foregoing clauses
(2)
and
(3)
shall
not apply to (i) a merger or consolidation of any Subsidiary of the Company
with
or into the Company or (ii) a transaction solely for the purpose of and with
the
effect of reincorporating the Company in another jurisdiction and/or forming
a
holding company to hold all of the Capital Stock of the Company or forming
an
intermediate holding company to hold all of the Capital Stock of the Company’s
Subsidiaries.
(b) The
Company will not cause or permit any Subsidiary Guarantor, directly or
indirectly, to consolidate or merge with or into another Person (whether or
not
such Guarantor is the Surviving Person) unless
(1) |
either
(x) such Guarantor is the Surviving Person or (y) the Person formed
by or
surviving any such consolidation or merger (if other than such Guarantor)
expressly assumes all of the obligations of such Guarantor under
(i) its
Guarantee and this Indenture pursuant to a supplemental indenture
reasonably satisfactory to the Trustee and (ii) the Collateral Agreements
by amendment, supplement or other instrument (in form and substance
reasonably satisfactory to the Trustee and the Collateral Agent)
and in
connection therewith shall cause such instruments to be filed and
recorded
in such jurisdictions and take such other actions as may be required
by
applicable law to perfect or continue the perfection of the Lien
created
under the Collateral Agreements on the Collateral owned by or transferred
to the Surviving Person by the filing of financing statements or
obtaining
control under the applicable Uniform Commercial Code, subject to
the
Intercreditor Agreement; and
|
(2) |
immediately
after such transaction no Default exists (including, without limitation,
after giving effect to any Indebtedness incurred or Liens incurred
or
granted in connection with such
transaction).
|
The
requirements of this clause
(b)
shall
not apply to (x) a consolidation or merger of any Subsidiary Guarantor with
or
into the Company or any other Subsidiary Guarantor so long as the Company or
a
Subsidiary Guarantor survives the consolidation or merger or (y) the sale by
consolidation or merger of a Subsidiary Guarantor, which sale is covered by
and
complies with Section
4.12.
(c) The
Company will deliver to the Trustee prior to the consummation of each proposed
transaction an Officers’ Certificate that the conditions set forth above are
satisfied and an Opinion of Counsel that the proposed transaction and the
supplemental indenture, if any, comply with this Indenture.
56
SECTION 5.02. |
Successor
Person Substituted.
|
Upon
any
consolidation or merger, or any transfer of all or substantially all of the
assets of the Company in accordance with Section 5.01 above, the successor
corporation or limited liability company formed by such consolidation or into
which the Company is merged or to which such transfer is made shall succeed
to,
and be substituted for, and may exercise every right and power of the Company
under this Indenture with the same effect as if such successor corporation
or
limited liability company had been named as the Company herein, and thereafter
the predecessor entity shall be relieved of all obligations and covenants under
this Indenture, the Collateral Agreement and the Notes.
ARTICLE
SIX
DEFAULTS
AND REMEDIES
SECTION 6.01. |
Events
of Default.
|
“Event
of Default”
is
defined as any one of the following events (whatever the reason for such Event
of Default and whether it is voluntary or involuntary or is 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):
(1) |
the
Issuers default in the payment of any installment of interest on
any Note
when and as the same becomes due and payable and such failure continues
for a period of 30 days;
|
(2) |
the
Issuers default in the payment of the principal of any Note when
and as
the same becomes due and payable at maturity, upon redemption or
purchase
or otherwise;
|
(3) |
(a)
there shall be a default in the performance or breach of the provisions
of
Section 5.01; (b) the Company shall have failed to make or consummate
a
Net Proceeds Offer in accordance with Section 4.12; or (c) the Company
shall have failed to make or consummate a Change of Control Offer
in
accordance with Section
4.08;
|
(4) |
either
Issuer fails to perform or observe any of its covenants, conditions
or
agreements in this Indenture or in the Notes (other than a covenant,
condition or agreement a default in whose performance or whose breach
is
elsewhere in this Article Six specifically dealt with) or any Collateral
Agreement, and such failure continues for a period of 60 days after
the
date on which written notice of such Default has been given to such
Issuer
by the Trustee or to such Issuer and to the Trustee by the Holders
of not
less than 25% of the principal amount of the Notes then outstanding
under
this Indenture;
|
(5) |
Parent,
the Company or any of its Subsidiaries defaults under any agreement
governing any of its other Indebtedness, if that
default
|
57
(a) |
is
caused by the failure to pay at final maturity the principal amount
of
such Indebtedness after giving effect to any applicable grace periods,
or
|
(b) |
results
in the acceleration of the final stated maturity of such Indebtedness
(including upon any event of the type described in clause
(7)
or
(8)
below),
|
and
in
each case, the aggregate principal amount of such Indebtedness unpaid or
accelerated equals or exceeds $10.0 million and has not been discharged in
full
or such acceleration has not been rescinded or annulled within 30 days after
such final maturity or acceleration;
(6) |
Parent,
the Company or any of its Subsidiaries fails to pay or otherwise
cause to
be discharged or stayed one or more judgments in an aggregate amount
exceeding $10.0 million, which are not covered by indemnities or
third
party insurance as to which the Person giving such indemnity or such
insurer has not disclaimed coverage, for a period of 60 days after
such
judgments become final and
nonappealable;
|
(7) |
a
court having jurisdiction in the premises enters (x) a decree or
order for
relief in respect of Parent, the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar
law or (y) a decree or order adjudging Parent, the Company or any
of its
Significant Subsidiaries a bankrupt or insolvent, or approving as
properly
filed a petition seeking reorganization, arrangement, adjustment
or
composition of or in respect of Parent, the Company or any of its
Significant Subsidiaries under any applicable federal or state law,
or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of Parent, the Company or
any of
its Significant Subsidiaries or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days;
|
(8) |
(a)Parent,
the Company or any of its Significant Subsidiaries commences a voluntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or any other case
or
proceeding to be adjudicated a bankrupt or insolvent;
or
|
(b) |
Parent,
the Company or any of its Significant Subsidiaries consents to the
entry
of a decree or order for relief in respect of the Company or any
of its
Significant Subsidiaries in an involuntary case or proceeding under
any
applicable federal or state bankruptcy, insolvency, reorganization
or
other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against Parent, the Company or any of its Significant
Subsidiaries; or
|
58
(c) |
Parent,
the Company or any of its Significant Subsidiaries files a petition
or
answer or consent seeking reorganization or relief under any applicable
federal or state law; or
|
(d) |
Parent,
the Company or any of its Significant Subsidiaries consents to the
filing
of such petition or to the appointment of or taking possession by
a
custodian, receiver, liquidator, assignee, trustee, sequestrator
or
similar official of Parent, the Company or any of its Significant
Subsidiaries or of any substantial part of their property;
or
|
(e) |
Parent,
the Company or any of its Significant Subsidiaries makes an assignment
for
the benefit of creditors; or
|
(f) |
Parent,
the Company or any of its Significant Subsidiaries admits in writing
its
inability to pay its debts generally as they become due;
or
|
(g) |
Parent,
the Company or any of its Significant Subsidiaries takes corporate
action
in furtherance of any such actions in this clause
(8);
|
(9) |
the
Guarantee of Parent or any Guarantor that is a Significant Subsidiary
ceases to be in full force and effect (other than in accordance with
the
terms of such Guarantee and this Indenture) or is declared null and
void
and unenforceable or is found invalid, or any Guarantor denies its
liability under its Guarantee (other than by reason of release of
a
Guarantor from its Guarantee in accordance with the terms of this
Indenture and the Guarantee);
|
(10) |
any
Collateral Agreement at any time for any reason shall cease to be
in full
force and effect in all material respects, or ceases to give the
Collateral Agent the Liens, rights, powers and privileges purported
to be
created thereby (subject to the Intercreditor Agreement), superior
to and
prior to the rights of all third Persons other than the holders of
Permitted Liens and subject to no other Liens except Permitted Liens
and
as expressly permitted by the applicable Collateral Agreement, in
each
case with respect to Collateral having a fair market value in excess
of
$2.5 million; or
|
(11) |
any
Issuer or any of the Guarantors, directly or indirectly, contest
in any
manner the effectiveness, validity, binding nature or enforceability
of
any Collateral Agreement.
|
SECTION 6.02. |
Acceleration
of Maturity; Rescission.
|
If
an
Event of Default specified in clause
(7)
or
(8)
of
Section
6.01
occurs
and is continuing with respect to either Issuer, then the principal of and
any
accrued and unpaid interest on all of the Notes shall immediately become due
and
payable without any declaration or other act on the part of the Trustee or
any
Noteholder. If any other Event of Default with respect to any Notes at the
time
outstanding occurs and is continuing, then, and in each and every such case,
either the Trustee, by notice in writing to the Company, or the Holders of
not
less than 25% of the principal amount of the Notes then outstanding, by notice
in writing to the Company and the Trustee, may declare due and payable, if
not
already due and payable, the principal of and any accrued and unpaid interest
on
the Notes; and upon any such declaration all such amounts upon the Notes shall
become and be immediately due and payable, anything in this Indenture or in
the
Notes to the contrary notwithstanding.
At
any
time after a declaration of acceleration with respect to the Notes as described
in the preceding paragraph, the Holders of at least 66⅔% of the aggregate
principal amount of the outstanding Notes, on behalf of all Holders of Notes,
may rescind and cancel such declaration and its consequences (a) if the
rescission would not conflict with any judgment or decree, (b) if all existing
Events of Default have been cured or waived except nonpayment of principal
or
interest that has become due solely because of the acceleration, (c) to the
extent the payment of such interest is lawful, interest on overdue installments
of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (d) if the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances, and (e) in the event of the cure or waiver of an
Event of Default of the type described in clause
(7)
or
(8)
of
Section
6.01,
the
Trustee has received an Officers’ Certificate and an Opinion of Counsel that
such Event of Default has been cured or waived.
No
such
rescission will affect any subsequent Default or impair any right consequent
thereto.
59
SECTION 6.03. |
Other
Remedies.
|
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal
of,
or premium, if any, and interest on the Notes or to enforce the performance
of
any provision of the Notes or this Indenture and may take any necessary action
requested of it as Trustee to settle, compromise, adjust or otherwise conclude
any proceedings to which it is a party.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holders in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative. Any costs associated with actions
taken by the Trustee under this Section 6.03 shall be reimbursed to the Trustee
by the Company.
SECTION 6.04. |
Waiver
of Past Defaults and Events of Default.
|
Provided
the Notes are not then due and payable by reason of a declaration of
acceleration, the Holders of at least 66⅔% of the aggregate principal amount of
Notes at the time outstanding may on behalf of the Holders of all the Notes
waive any past Default and its consequences by providing written notice thereof
to the Company and the Trustee, except a Default (1) in the payment of interest
on or the principal of any Note or (2) in respect of a covenant or provision
hereof which under this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Note affected. In the case of any
such
waiver, the Company, the Trustee and the Holders of the Notes will be restored
to their former positions and rights under this Indenture, respectively;
provided,
that no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
60
SECTION 6.05. |
Control
by Majority.
|
The
Holders of a majority in principal amount of Notes then outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any power or trust conferred upon the Trustee
under this Indenture with respect to the Notes; provided,
however,
that
subject to the provisions of this Indenture, the Trustee shall have the right
to
decline to follow any such direction if the Trustee, advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith shall by responsible officers determine that
the
action or proceeding so directed would involve the Trustee in liability or
that
the Trustee is not satisfactorily indemnified from the costs
thereof.
SECTION 6.06. |
Limitation
on Suits.
|
No
Holder
of any Note will have the right to pursue a remedy with respect to this
Indenture or the Notes unless (a) such Holder gives to the Trustee notice of
a
continuing Event of Default with respect to the Notes, (b) the Holders of at
least 25% in principal amount of Notes make a request to the Trustee to pursue
the remedy and such Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense, (c) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity and (d) the Holders of a majority
in principal amount of Notes have not given the Trustee a direction inconsistent
with such request within such 60day period.
A
Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07. |
No
Personal Liability of Directors,
Officers,
|
Employees
and
Stockholders.
No
past,
present or future director, officer, employee, incorporator, agent, member
or
stockholder or Affiliate of the Company, as such, shall have any liability
for
any obligations of the Company under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
No
past, present or future director, officer, employee, incorporator, agent or
stockholder or Affiliate of any of the Guarantors, as such, shall have any
liability for any obligations of the Guarantors under the Guarantees, this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes and Guarantees by accepting
a Note and a Guarantee waives and releases all such liabilities. The waiver
and
release are part of the consideration for issuance of the Notes and the
Guarantees.
SECTION 6.08. |
Rights
of Holders To Receive Payment.
|
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of and interest on the Note on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement
of any such payment on or after such respective dates, may not be impaired
or
affected without the consent of the Holder.
61
SECTION 6.09. |
Collection
Suit by Trustee.
|
If
an
Event of Default in payment of principal, premium or interest specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any Guarantor (or any other obligor on the Notes) for the whole amount of
unpaid principal and accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate set
forth
in the Notes, and such further amounts as shall be sufficient to cover the
costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.10. |
Trustee
May File Proofs of Claim.
|
The
Trustee may file such proofs of claim and other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee (including
any
claim for the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under
Section 7.07) and the Noteholders allowed in any judicial proceedings relative
to the Company or any Guarantor (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same after deduction of its charges and expenses to the
extent that any such charges and expenses are not paid out of the estate in
any
such proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Noteholder 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 Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section
7.07.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Noteholder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes
or
the rights of any Noteholder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceedings.
SECTION 6.11. |
Priorities.
|
If
the
Trustee collects any money pursuant to this Article Six, it shall pay out the
money in the following order:
FIRST:
to the
Trustee for amounts due under Section 7.07;
SECOND:
to
Noteholders for amounts due and unpaid on the Notes for principal, premium,
if
any, and interest as to each, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes; and
62
THIRD:
to the
Company or, to the extent the Trustee collects any amount from any Guarantor,
to
such Guarantor.
The
Trustee may fix a record date and payment date for any payment to Noteholders
pursuant to this Section 6.11.
SECTION 6.12. |
Undertaking
for Costs.
|
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good
faith of the claims or defenses made by the party litigant. This Section 6.12
does not apply to a suit by the Trustee, a suit by a Noteholder pursuant to
Section 6.08 or a suit by Noteholders of more than 10% in principal amount
of
the Notes then outstanding.
ARTICLE
SEVEN
TRUSTEE
SECTION
7.01. Duties
of
Trustee.
(a) If
an
Event of Default actually known to a Responsible Officer of the Trustee 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 same
circumstances in the conduct of his or her own affairs.
The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
(b) Except
during the continuance of an Event of Default:
(1) The
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others.
(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 any 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 on their face to the requirements of
this
Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein). Whenever in the administration
of
this Indenture the Trustee shall deem it desirable that a matter be proved
or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers’
Certificate, subject to the requirement in the preceding sentence, if
applicable.
63
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own
negligent failure to act, or its own willful misconduct, except
that:
(1) This
paragraph does not limit the effect of paragraph (b) of this Section
7.01.
(2) The
Trustee shall not be liable for any error of judgment made in good faith, unless
it is proved that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to the
terms hereof.
(4) No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its rights, powers or duties if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity satisfactory to it against
such risk or liability is not reasonably assured to it.
(d) Whether
or not therein expressly so provided, paragraphs (a), (b), (c) and (e) of this
Section 7.01 shall govern every provision of this Indenture that in any way
relates to the Trustee.
(e) 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 security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(f) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company or any Guarantor. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by the law.
SECTION 7.02. |
Rights
of Trustee.
|
Subject
to Section 7.01:
(1) The
Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate any fact
or
matter stated in the document.
(2) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, or both, which shall conform to the
provisions of Section 11.05. The Trustee shall be protected and shall not be
liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
64
(3) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed by it with due
care.
(4) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or
powers; provided,
that
the Trustee’s conduct does not constitute gross negligence or bad
faith.
(5) The
Trustee may consult with counsel of its selection, and the advice or opinion
of
such counsel as to matters of law shall be full and complete authorization
and
protection from liability in respect of any action taken, omitted or suffered
by
it hereunder in good faith and in accordance with the advice or opinion of
such
counsel.
(6) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other person employed to act hereunder.
(7) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at
the
sole cost of the Issuers and shall incur no liability or additional liability
of
any kind by reason of such inquiry or investigation.
(8) The
Trustee may request that the Issuers deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
(9) in
no
event shall the Trustee be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss or profit) irrespective of whether the Trustee has been advised of
the
likelihood of such loss or damage and regardless of the form of
action.
SECTION 7.03. |
Individual
Rights of Trustee.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may make loans to, accept deposits from, perform services for
or
otherwise deal with the either of the Issuers or any Guarantor, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11.
65
SECTION 7.04. |
Trustee’s
Disclaimer.
|
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes or any Guarantee, it shall
not be accountable for the Issuers’ or any Guarantor’s use of the proceeds from
the sale of Notes or any money paid to the Issuers or any Guarantor pursuant
to
the terms of this Indenture and it shall not be responsible for any statement
in
the Notes, Guarantee or this Indenture other than its certificate of
authentication.
SECTION 7.05. |
Notice
of Defaults.
|
If
a
Default occurs and is continuing and if it is known to the Trustee, the Trustee
will give to each Noteholder a notice of the Default within 90 days after it
occurs in the manner and to the extent provided in the TIA and otherwise as
provided in this Indenture. Except in the case of a Default in payment of the
principal of or interest on any Note (including payments pursuant to a
redemption or repurchase of the Notes pursuant to the provisions of this
Indenture), the Trustee may withhold the notice if and so long as a committee
of
its responsible officers in good faith determines that withholding the notice
is
in the interests of Noteholders.
SECTION 7.06. |
Reports
by Trustee to Holders.
|
If
required by TIA § 313(a), within 60 days after May 15 of any year, commencing
2006 the Trustee shall mail to each Noteholder a brief report dated as of such
date that complies with TIA § 313(a). The Trustee also shall comply with TIA §
313(b)(2). The Trustee shall also transmit by mail all reports as required
by
TIA § 313(c) and TIA § 313(d).
Reports
pursuant to this Section 7.06 shall be transmitted by mail:
(1) to
all
Holders of Notes, as the names and addresses of such Holders appear on the
Registrar’s books; and
(2) to
such
Holders of Notes as have, within the two years preceding such transmission,
filed their names and addresses with the Trustee for that purpose.
A
copy of
each report at the time of its mailing to Noteholders shall be filed with the
Commission and each stock exchange on which the Notes are listed. The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange or delisted therefrom.
SECTION 7.07. |
Compensation
and Indemnity.
|
The
Issuers and the Guarantors shall pay to the Trustee and Agents from time to
time
such compensation for its services hereunder as the Issuers and the Trustee
shall from time to time agree in writing (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an
express trust). The Issuers and the Guarantors shall reimburse the Trustee
and
Agents upon request for all reasonable disbursements, expenses and advances
incurred or made by it in connection with its duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.
66
The
Issuers and the Guarantors, jointly and severally, shall fully indemnify each
of
the Trustee and any predecessor Trustee for, and hold each of them harmless
against, any and all loss, damage, claim, liability or expense, including
without limitation taxes (other than taxes based on the income of the Trustee
or
such Agent) and reasonable attorneys’ fees and expenses incurred by each of them
in connection with the acceptance or performance of its duties under this
Indenture including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of
any of its powers or duties hereunder (including, without limitation, settlement
costs). The Trustee or Agent shall notify the Issuers and the Guarantors in
writing promptly of any claim of which a Responsible Officer of the Trustee
has
received written notice asserted against the Trustee or Agent for which it
may
seek indemnity; provided,
that
the failure by the Trustee or Agent to so notify the Issuers and the Guarantors
shall not relieve the Issuers and Guarantors of their obligations hereunder
except to the extent the Issuers and the Guarantors are actually prejudiced
thereby.
Notwithstanding
the foregoing, the Issuers and the Guarantors need not reimburse the Trustee
for
any expense or indemnify it against any loss or liability determined by a court
of competent jurisdiction to have been incurred by the Trustee through its
own
negligence or bad faith.
To
secure
the payment obligations of the Issuers and the Guarantors in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee except such money or property held in trust to
pay
principal of and interest on particular Notes.
The
obligations of the Issuers and the Guarantors under this Section 7.07 to
compensate and indemnify the Trustee, Agents and each predecessor Trustee and
to
pay or reimburse the Trustee, Agents and each predecessor Trustee for expenses,
disbursements and advances shall be joint and several liabilities of each Issuer
and each of the Guarantors and shall survive the resignation or removal of
the
Trustee and the satisfaction, discharge or other termination of this Indenture,
including any termination or rejection hereof under any Bankruptcy
Law.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(6) or (7) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
For
purposes of this Section 7.07, the term “Trustee” shall include any trustee
appointed pursuant to this Article Seven.
SECTION 7.08. |
Replacement
of Trustee.
|
The
Trustee may resign by so notifying the Issuers and the Guarantors in writing.
The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee by notifying the Issuers and the removed Trustee in writing
and may appoint a successor Trustee with the Issuers’ written consent, which
consent shall not be unreasonably withheld. The Issuers may remove the Trustee
at their election if:
67
(1) the
Trustee fails to comply with Section 7.10;
(2) the
Trustee is adjudged a bankrupt or an insolvent;
(3) a
receiver or other public officer takes charge of the Trustee or its property;
or
(4) the
Trustee otherwise becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Issuers
shall
promptly appoint a successor Trustee.
If
a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Issuers or the Holders of
a
majority in principal amount of the outstanding Notes may petition at the
expense of the Issuers any court of competent jurisdiction for the appointment
of a successor Trustee.
If
the
Trustee fails to comply with Section 7.10, any Noteholder may petition any
court
of competent jurisdiction for the removal of the Trustee and the appointment
of
a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Issuers. Immediately following such delivery, the
retiring Trustee shall, subject to its rights under Section 7.07, transfer
all
property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuers’ obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. |
Successor
Trustee by Consolidation, Merger, etc.
|
If
the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation, subject
to Section 7.10, the successor corporation without any further act shall be
the
successor Trustee; provided
such
entity shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10. |
Eligibility;
Disqualification.
|
This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§
310(a)(1) and (2) in every respect. The Trustee (together with its corporate
parent) shall have a combined capital and surplus of at least $100,000,000
as
set forth in the most recent applicable published annual report of condition.
The Trustee shall comply with TIA § 310(b), including the provision in §
310(b)(1).
68
SECTION 7.11. |
Preferential
Collection of Claims Against Company.
|
The
Trustee shall comply with TIA § 311(a), excluding any creditor relationship
listed in TIA § 311 (b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated therein.
SECTION 7.12. |
Paying
Agents.
|
The
Issuers shall cause each Paying Agent other than the Trustee to execute and
deliver to it and the Trustee an instrument in which such agent shall agree
with
the Trustee, subject to the provisions of this Section 7.12:
(A) that
it
will hold all sums held by it as agent for the payment of principal of, or
premium, if any, or interest on, the Notes (whether such sums have been paid
to
it by the Company or by any obligor on the Notes) in trust for the benefit
of
Holders of the Notes or the Trustee;
(B) that
it
will at any time during the continuance of any Event of Default, upon written
request from the Trustee, deliver to the Trustee all sums so held in trust
by it
together with a full accounting thereof; and
(C) that
it
will give the Trustee written notice within three (3) Business Days of any
failure of the Company (or by any obligor on the Notes) in the payment of any
installment of the principal of, premium, if any, or interest on, the Notes
when
the same shall be due and payable.
SECTION 7.13. |
Other
Documents.
|
In
connection with the Trustee’s appointment and acting under any Collateral
Documents or any other document or instrument executed by the Trustee pursuant
to the terms of this Indenture, the Trustee is entitled to all rights,
privileges, protections, immunities and indemnities provided to it under this
Indenture.
ARTICLE
EIGHT
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
SECTION 8.01. |
Without
Consent of Noteholders.
|
The
Issuers and the Guarantors, when authorized by a board resolution, and the
Trustee and, if the amendment related to any Collateral Agreement, the
Collateral Agent may enter into an indenture or indentures supplemental hereto
to amend this Indenture or the Notes or a Collateral Agreement without prior
notice to or the consent of any Noteholder:
(1) |
to
cure any ambiguity, omission, defect or
inconsistency;
|
69
(2) |
to
comply with the provisions set forth in Article
Five;
|
(3) |
to
comply with any requirements of the Commission in connection with
the
qualification of this Indenture under the TIA as then in
effect;
|
(4) |
to
provide for uncertificated Notes in addition to or in place of
certificated Notes;
provided,
however,
that the uncertificated Notes are issued in registered form for purposes
of Section 163(f) of the Internal Revenue Code or in a manner such
that
the uncertificated Notes are described in Section 163(f)(2) of the
Internal Revenue Code;
|
(5) |
if
necessary, in connection with any addition or release of Collateral
permitted under the terms of the Indenture and the Collateral
Agreements;
|
(6) |
to
evidence or to provide for a replacement
Trustee;
|
(7) |
to
add to the covenants and agreements of the Company for the benefit
of all
of the Holders of all of the Notes and to surrender any right or
power
herein reserved to the Company;
|
(8) |
to
make any change that does not materially adversely affect the legal
rights
of any Noteholder under this Indenture as then in effect;
or
|
(9) |
to
release any Guarantor from its Guarantee in accordance with the provisions
of this Indenture.
|
SECTION 8.02. |
With
Consent of Noteholders.
|
(a) The
Issuers, when authorized by a board resolution, and the Trustee and, if the
amendment relates to any Collateral Agreement, the Collateral Agent may enter
into one or more supplemental indentures to amend this Indenture, the Notes
or
the Collateral Agreement with the written consent of the Holders of
at
least 66⅔% (or with respect to the release of all or substantially all of the
Collateral otherwise than in accordance with the terms of this Indenture and
the
Collateral Agreements, 75%)
of the
aggregate principal amount of the then outstanding Notes. Subject to Section
6.04, the Holders of at least 66⅔% (or with respect to the release of all or
substantially all of the Collateral otherwise than in accordance with the terms
of the Indenture and the Collateral Agreements, 75%) of the aggregate principal
amount of the then outstanding Notes may waive compliance by the Company with
any provision of this Indenture, the Notes or the Collateral Agreement without
prior notice to any other Noteholder.
(b) Notwithstanding
the preceding paragraph, without the consent of each Noteholder affected, an
amendment or waiver may not:
(1) |
reduce
the amount of Notes whose Holders must consent to an amendment or
waiver;
|
(2) |
reduce
the rate of or change the time for payment of interest, including
default
interest, on any Note;
|
70
(3) |
reduce
the principal of or change the Stated Maturity of any Note or alter
the
provisions with respect to
redemption;
|
(4) |
make
any Note payable in currency other than that stated in the
Note;
|
(5) |
make
any change in this Section 8.02;
|
(6) |
make
any change in this Indenture to adversely affect the ranking in right
of
payment of the Notes or any
Guarantee;
|
(7) |
make
any change in Section 6.04 or 6.08;
|
(8) |
impair
or affect the right of any holder of Notes to receive payment of
principal
of and interest on the Notes on or after the due dates therefor or
to
institute suit for payment for the enforcement of any such payment
on or
after the due dates therefor, or make any changes in the provisions
of the
Indenture permitting holders of at least 66⅔% (or, with respect to the
release of all or substantially all of the Collateral otherwise than
in
accordance with the Indenture or the Collateral Agreements, 75%)
of the
aggregate principal amount of the outstanding Notes to waive any
past
Default and its consequences;
|
(9) |
after
the obligation has arisen to make a Change of Control Offer, amend,
change
or modify in any material respect the obligation of the Company to
make
and complete such Change of Control;
or
|
(10) |
release
any Guarantor from its Guarantee other than pursuant to the provisions
of
this Indenture.
|
(c) It
shall
not be necessary for the consent of the Holders under this Section 8.02 to
approve the particular form of any proposed amendment, supplement or waiver,
but
it shall be sufficient if such consent approves the substance
thereof.
(d) After
an
amendment, supplement or waiver under Section 8.01 or this Section 8.02 becomes
effective, the Company shall mail to the Holders a notice briefly describing
the
amendment, supplement or waiver. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.
(e) Upon
the
written request of the Company accompanied by a board resolution authorizing
the
execution of any such supplemental indenture, and upon the receipt by the
Trustee of evidence reasonably satisfactory to the Trustee of the consent of
the
Noteholders as aforesaid and upon receipt by the Trustee of the documents
described in Section 8.06, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture, in
which case the Trustee may, but shall not be obligated to, enter into such
supplemental indenture.
71
SECTION 8.03. |
Compliance
with Trust Indenture Act.
|
Every
amendment or supplement to this Indenture or the Notes shall comply with the
TIA
as then in effect.
SECTION 8.04. |
Revocation
and Effect of Consents.
|
(a) Until
an
amendment, supplement, waiver or other action becomes effective, a consent
to it
by a Holder of a Note is a continuing consent conclusive and binding upon such
Holder and every subsequent Holder of the same Note or portion thereof, and
of
any Note issued upon the transfer thereof or in exchange therefor or in place
thereof, even if notation of the consent is not made on any such Note. Any
such
Holder or subsequent Holder, however, may revoke the consent as to his Note
or
portion of a Note, if the Trustee receives the written notice of revocation
before the date the amendment, supplement, waiver or other action becomes
effective.
(b) The
Company may, but shall not be obligated to, fix a record date for the purpose
of
determining the Noteholders entitled to consent to any amendment, supplement,
or
waiver. If a record date is fixed, then, notwithstanding the preceding
paragraph, those Persons who were Noteholders at such record date (or their
duly
designated proxies), and only such Persons, shall be entitled to consent to
such
amendment, supplement, or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Noteholders after such record date.
No such consent shall be valid or effective for more than 90 days after such
record date unless the consent of the requisite number of Noteholders has been
obtained.
(c) After
an
amendment, supplement, waiver or other action becomes effective, it shall bind
every Noteholder, unless it makes a change described in any of clauses
(1)
through
(10)
of
Section
8.02(b).
In that
case the amendment, supplement, waiver or other action shall bind each
Noteholder who has consented to it and every subsequent Noteholder or portion
of
a Note that evidences the same debt as the consenting Holder’s
Note.
SECTION 8.05. |
Notation
on or Exchange of Notes.
|
If
an
amendment, supplement, or waiver changes the terms of a Note, the Trustee (in
accordance with the specific written direction of the Company) shall request
the
Holder of the Note (in accordance with the specific written direction of the
Issuers) to deliver it to the Trustee. In such case, the Trustee shall place
an
appropriate notation on the Note about the changed terms and return it to the
Noteholder. Alternatively, if the Issuers or the Trustee so determines, the
Issuers in exchange for the Note shall issue, the Guarantors shall endorse,
and
the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.
SECTION 8.06. |
Trustee
To Sign Amendments, etc.
|
The
Trustee shall sign any amendment, supplement or waiver authorized pursuant
to
this Article Eight if the amendment, supplement or waiver does not affect the
rights, duties, liabilities or immunities of the Trustee. If it does affect
the
rights, duties, liabilities or immunities of the Trustee, the Trustee may,
but
need not, sign such amendment, supplement or waiver. In signing or refusing
to
sign such amendment, supplement or waiver the Trustee shall be provided with
and, subject to Section 7.01, shall be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel stating, in addition to the
matters required by Section 11.04, that such amendment, supplement or waiver
is
authorized or permitted by this Indenture and is a legal, valid and binding
obligation of the Issuers and the Guarantors, enforceable against the Issuers
and the Guarantors in accordance with its terms (subject to customary
exceptions).
72
ARTICLE
NINE
DISCHARGE
OF INDENTURE; DEFEASANCE
SECTION 9.01. |
Discharge
of Indenture.
|
Upon
the
request of the Issuers, this Indenture, the Guarantees, the Notes and the
Collateral Agreements shall cease to be of further effect and the Trustee,
at
the expense of the Issuers, will execute proper instruments acknowledging
satisfaction and discharge of the Notes and this Indenture, the Guarantees
and
the Collateral Agreements when:
(1) |
either:
|
(a) |
all
the Notes theretofore authenticated and delivered (other than destroyed,
lost or stolen Notes that have been replaced or paid and Notes that
have
been subject to defeasance pursuant to Section 9.02 or 9.03) have
been
delivered to the Trustee for cancellation;
or
|
(b) |
all
Notes not theretofore delivered to the Trustee for
cancellation:
|
(i) |
have
become due and payable by the mailing of a notice of redemption or
otherwise;
|
(ii) |
will
become due and payable within one year;
or
|
(iii) |
are
to be called for redemption within 12 months under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption
by the
Trustee in the name, and at the reasonable expense, of the
Issuers;
|
and
the
Issuers have irrevocably deposited or caused to be deposited with the Trustee
funds in trust for the purpose in an amount sufficient to pay and discharge
the
entire Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest on the Notes
to
the date of such deposit (in case of Notes that have become due and payable)
or
to the Stated Maturity or redemption date, as the case may be;
73
(2) |
the
Issuers have paid or caused to be paid all sums payable under this
Indenture by the Issuers; and
|
(3) |
the
Issuers have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided
in
this Indenture relating to the satisfaction and discharge of the
Notes,
this Indenture, the Collateral Agreements and the Guarantees of the
Notes
have been complied with.
|
After
such delivery, the Trustee upon Company Request shall acknowledge in writing
the
discharge of the Issuers’ and the Guarantors’ obligations under the Notes, the
Guarantees and this Indenture except for those surviving obligations specified
below.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Issuers
in Sections 7.07, 9.05 and 9.06 shall survive such satisfaction and
discharge.
SECTION 9.02. |
Legal
Defeasance.
|
The
Issuers may, at their option and at any time, elect to have their obligations
and the obligations of the Guarantors discharged with respect to the outstanding
Notes on a date the conditions set forth in Section 9.04 are satisfied
(hereinafter, “Legal
Defeasance”).
For
this purpose, such Legal Defeasance means that the Issuers will be deemed to
have paid and discharged the entire indebtedness represented by the outstanding
Notes and to have satisfied all its other obligations under such Notes, this
Indenture and the Collateral Agreements insofar as such Notes are concerned
(and
the Trustee, at the expense of the Issuers, shall, subject to Section 9.06,
execute instruments in form and substance reasonably satisfactory to the Trustee
and Company acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights
of
Holders of outstanding Notes to receive solely from the trust funds described
in
Section 9.04 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 Issuers’ obligations with respect to such Notes under Sections
2.03, 2.04, 2.05, 2.06, 2,07, 2.08, 2.11, 4.02, 4.03 and 4.05, (C) the rights,
powers, trusts, duties, and immunities of the Trustee hereunder (including
claims of, or payments to, the Trustee under or pursuant to Section 7.07) and
the Issuers’ obligations in connection therewith and (D) this Article
Nine.
Subject
to compliance with this Article Nine, the Issuers may exercise their option
under this Section
9.02
with
respect to the Notes notwithstanding the prior exercise of its option under
Section
9.03
below
with respect to the Notes.
SECTION 9.03. |
Covenant
Defeasance.
|
The
Issuers may, at their option and at any time, elect to have their obligations
and the obligations of the Guarantors under Sections
4.03
(other
than as it relates to legal existence of the Issuers), 4.04,
4.07
through
4.18
and
4.21
(except
for obligations mandated by the TIA), clause
(a)(3)
of
Section
5.01
and the
covenants contained in the Collateral Agreements released with respect to the
outstanding Notes on a date the conditions set forth in
Section 9.04
are
satisfied (hereinafter, “Covenant
Defeasance”).
For
this purpose, Covenant Defeasance means that, with respect to the outstanding
Notes, the Issuers may fail to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein
to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section
6.01,
but,
except as specified above, the remainder of this Indenture, such Notes and
the
Collateral Agreements shall be unaffected thereby. In addition, upon the
Issuers’ exercise of the option in this Section
9.03,
subject
to the satisfaction of the conditions set forth in Section
9.04,
Sections
6.01(5),
(6)
and
(9)
shall
not constitute Events of Default.
74
Notwithstanding
any discharge or release of any obligations under this Indenture pursuant to
Section 9.02 or this Section 9.03, the Issuers’ obligations in Sections 2.04,
2.06, 2.07, 2.08, 7.07, 9.05, 9.06 and 9.08 shall survive until such time as
the
Notes have been paid in full. Thereafter, the Issuers’ obligations in Sections
7.07, 9.05 and 9.08 shall survive.
SECTION 9.04. |
Conditions
to Defeasance or Covenant Defeasance.
|
The
following shall be the conditions to application of Section 9.02 or Section
9.03
to the outstanding Notes:
(a) |
(1)
the Issuers have irrevocably deposited or caused to be deposited
in trust
for the benefit of the Noteholders with the Trustee or a Paying Agent
or a
trustee satisfactory to the Trustee and the Issuers, under the terms
of an
irrevocable trust agreement in form and substance satisfactory to
the
Trustee and any such Paying Agent, (x) money in an amount sufficient,
or
(y) U.S. Government Obligations that shall be payable as to principal
and
interest in such amounts and at such times as are sufficient, in
the
opinion of a nationally recognized firm of independent public accountants
or Independent Financial Advisors expressed in a written certification
thereof delivered to the Trustee (without consideration of any
reinvestment of such interest), or (z) any combination thereof in
an
amount sufficient to pay the principal of and interest on the outstanding
Notes on the dates such installments are due to redemption or Stated
Maturity, (2) the trustee of the irrevocable trust has been irrevocably
instructed to pay such money or the proceeds of such U.S. Government
Obligations to the Trustee and (3) the Trustee or Paying Agent shall
have
been irrevocably instructed in writing to apply the deposited money
and
the proceeds from U.S. Government Obligations in accordance with
the terms
of this Indenture and the terms of the Notes to the payment of principal
of and interest on the Notes;
|
(b) |
the
deposit described in clause
(a)
above will not result in a breach or violation of, or constitute
a Default
under, any other agreement or instrument to which either Issuer is
a party
or by which it is bound;
|
(c) |
no
Default has occurred and is continuing (1) as of the date of such
deposit
(other than a Default resulting from the borrowing of funds to be
applied
to such deposit and the grant of any Lien securing such borrowing)
or (2)
insofar as clause
(7)
or
(8)
of
Section
6.01
is
concerned at any time during the period ending on the 91st day after
the
date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the Issuers
in
respect of such deposit (it being understood that the condition in
this
clause
(c)
is
a condition subsequent and will not be deemed satisfied until the
expiration of such period);
|
75
(d) |
the
Issuers have paid or caused to be paid all sums currently due and
payable
by the Issuers under this Indenture and under the
Notes;
|
(e) |
the
Issuers have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided
for in this Indenture relating to the termination by the Issuers
of their
obligations have been complied
with;
|
(f) |
in
the case of an election under Section 9.02, the Company has delivered
to
the Trustee either (1) an opinion of counsel by recognized counsel
who is
not an employee of the Company or any of its Subsidiaries, stating
that,
since the date of this Indenture, there has been a change in the
applicable federal income tax law, and based thereon such opinion
of
counsel shall confirm that, or (2) a ruling received from the Internal
Revenue Service to the effect that, the Holders of the Notes will
not
recognize income, gain or loss for federal income tax purposes as
a result
of the Issuers’ exercise of their legal defeasance option and will be
subject to federal income tax on the same amount and in the same
manner
and at the same times as would have been the case if such legal defeasance
option had not been exercised; and
|
(g) |
in
the case of an election under Section 9.03, the Company has delivered
to
the Trustee either (1) a ruling received from the Internal Revenue
Service
to the effect that, or (2) an opinion of counsel by recognized counsel
who
is not an employee of the Company or any of its Subsidiaries stating
that,
the Holders of the Notes will not recognize income, gain or loss
for
federal income tax purposes as a result of the Issuers’ exercise of their
covenant defeasance option under this paragraph and will be subject
to
federal income tax on the same amount and in the same manner and
at the
same times as would have been the case if such covenant defeasance
option
had not been exercised.
|
SECTION 9.05. |
Deposited
Money and U.S. Government Obligations
To
|
Be
Held in Trust; Other Miscellaneous
Provisions.
All
money
and U.S. Government Obligations (including the proceeds thereof) deposited
with
the Trustee pursuant to Section 9.04 in respect of the outstanding Notes shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through
any
Paying Agent, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, but
such
money need not be segregated from other funds except to the extent required
by
law.
The
Issuers and the Guarantors shall (on a joint and several basis) pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.04 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 outstanding Notes.
76
Anything
in this Article Nine to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon a Company Request any money or
U.S.
Government Obligations held by it as provided in Section 9.04 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are
in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 9.06. |
Reinstatement.
|
If
the
Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with Section 9.01, 9.02 or 9.03 by reason of any
legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the
Issuers’ and each Guarantor’s obligations under this Indenture, the Notes and
the Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Nine until such time as the Trustee or Paying Agent
is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 9.01; provided,
that if
the Issuers or the Guarantors have made any payment of principal of, premium,
if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Issuers or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
SECTION 9.07. |
Moneys
Held by Paying Agent.
|
In
connection with the satisfaction and discharge of this Indenture, all moneys
then held by any Paying Agent under the provisions of this Indenture shall,
upon
written demand of the Issuers, be paid to the Trustee, or if sufficient moneys
have been deposited pursuant to Section 9.04, to the Company upon an Company
Request (or, if such moneys had been deposited by the Guarantors, to such
Guarantors), and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION 9.08. |
Moneys
Held by Trustee.
|
Any
moneys deposited with the Trustee or any Paying Agent or then held by the
Issuers or the Guarantors in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which
the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon a Company Request, or if such moneys are
then
held by the Issuers or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Issuers
and
the Guarantors for the payment thereof, and all liability of the Trustee or
such
Paying Agent with respect to such trust money shall thereupon cease;
provided,
that
the Trustee or any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Issuers and the Guarantors, either mail
to
each Noteholder affected, at the address shown in the register of the Notes
maintained by the Registrar pursuant to Section 2.04, or cause to be published
once a week for two successive weeks, in a newspaper published in the English
language, customarily published each Business Day and of general circulation
in
the City of New York, New York, a 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 mailing or publication, any unclaimed balance of such moneys
then remaining will be repaid to the Company. After payment to the Issuers
or
the Guarantors or the release of any money held in trust by the Issuers or
any
Guarantors, as the case may be, Noteholders entitled to the money must look
only
to the Issuers and the Guarantors for payment as general creditors unless
applicable abandoned property law designates another Person.
77
ARTICLE
TEN
GUARANTEE
OF NOTES
SECTION 10.01. |
Guarantee.
|
Subject
to the provisions of this Article Ten, the Guarantors, by execution of this
Indenture, jointly and severally, guarantee to each Holder (i) the due and
punctual payment of the principal of and interest on each Note, when and as
the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
of
and interest on the Notes, to the extent lawful, and the due and punctual
payment of all other obligations and due and punctual performance of all
obligations of the Issuers to the Holders or the Trustee all in accordance
with
the terms of such Note and this Indenture, and (ii) in the case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, at stated maturity, by acceleration
or otherwise. Each Guarantor, by execution of this Indenture, agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of,
and
shall be unaffected by, any invalidity, irregularity or unenforceability of
any
such Note or this Indenture, any failure to enforce the provisions of any such
Note or this Indenture, any waiver, modification or indulgence granted to the
Issuers with respect thereto by the Holder of such Note, or any other
circumstances which may otherwise constitute a legal or equitable discharge
of a
surety or such Guarantor.
Each
Guarantor hereby waives diligence, presentment, demand for payment, filing
of
claims with a court in the event of merger or bankruptcy of either Issuer,
any
right to require a proceeding first against such Issuer, protest or notice
with
respect to any such Note or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged as to
any
such Note except by payment in full of the principal thereof and interest
thereon. Each Guarantor hereby agrees that, as between such Guarantor, on the
one hand, and the Holders and the Trustee, on the other hand, (i) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article
Six for the purposes of this Guarantee, notwithstanding any stay, injunction
or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration
of
such obligations as provided in Article Six, such obligations (whether or not
due and payable) shall forthwith become due and payable by each Guarantor for
the purpose of this Guarantee.
The
Guarantors shall have the right to seek contribution from any nonpaying
Guarantor so long as the exercise of such right does not impair the rights
of
any Holder under the Guarantees.
78
SECTION 10.02. |
Execution
and Delivery of Guarantee.
|
To
further evidence the Guarantee set forth in Section 10.01, each Guarantor hereby
agrees that a notation of such Guarantee, substantially in the form included
in
Exhibit
G hereto,
shall be endorsed on each Note authenticated and delivered by the Trustee and
such Guarantee shall be executed by either manual or facsimile signature of
an
officer or an officer of a general partner, as the case may be, of each
Guarantor. The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.
Each
of
the Guarantors hereby agrees that its Guarantee set forth in Section 10.01
shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Guarantee.
If
an
officer of a Guarantor whose signature is on this Indenture or a Guarantee
no
longer holds that office at the time the Trustee authenticates the Note on
which
such Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee
of such Note shall be valid nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of any Guarantee set forth in this Indenture
on
behalf of the Guarantor.
SECTION 10.03. |
Limitation
of Guarantee.
|
The
obligations of each Subsidiary Guarantor are limited to the maximum amount
as
will, after giving effect to all other contingent and fixed liabilities of
such
Subsidiary Guarantor and after giving effect to any collections from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under its Guarantee or pursuant
to its contribution obligations under this Indenture, result in the obligations
of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law.
SECTION 10.04. |
Additional
Guarantors.
|
The
Company covenants and agrees that it shall cause any Person which becomes
obligated to guarantee the Notes, pursuant to the terms of Section 4.16, to
execute a supplemental indenture and any other documentation requested by the
Trustee satisfactory in form and substance to the Trustee in accordance with
Section 4.16 pursuant to which such Subsidiary of the Company shall guarantee
the obligations of the Issuers under the Notes and this Indenture in accordance
with this Article Ten with the same effect and to the same extent as if such
Person had been named herein as a Guarantor.
79
SECTION 10.05. |
Release
of Guarantors.
|
The
Guarantee of any Subsidiary Guarantor will be automatically and unconditionally
released and discharged upon any of the following:
(a) |
any
Transfer, to any Person not an Affiliate of the Company, of all of
the
Capital Stock held by the Company or any of its Subsidiaries in,
or of all
or substantially all the assets of, such Guarantor (which Transfer
is made
in accordance with the Indenture and, if the Company or any of its
Subsidiaries intends to comply with Section
4.12
by
making an investment or expenditure in Replacement Assets, the Company
or
such Subsidiary delivers to the Trustee a written agreement that
it will
make such investment or expenditure within the time frame set forth
in
Section
4.12);
|
(b) |
if
the Company exercises its Legal Defeasance option or its Covenant
Defeasance option as described in Section
9.02
and Section
9.03;
or
|
(c) |
upon
satisfaction and discharge of the Indenture or payment in full of
the
principal of premium, if any, and accrued and unpaid interest, if
any, on
the Notes and all other Obligations that are then due and
payable.
|
and
in
each such case, the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
The
Trustee shall execute any documents reasonably requested by either Issuer or
a
Subsidiary Guarantor in order to evidence the release of such Subsidiary
Guarantor from its obligations under its Guarantee endorsed on the Notes and
under this Article Ten.
SECTION 10.06. |
Waiver
of Subrogation.
|
Each
Guarantor hereby irrevocably waives any claim or other rights which it may
now
or hereafter acquire against either Issuer that arise from the existence,
payment, performance or enforcement of such Guarantor’s obligations under its
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Notes against either Issuer,
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 Issuers, directly or indirectly, in cash or other property
or
by setoff or in any other manner, payment or Note on account of such claim
or
other rights. If any amount shall be paid to any Guarantor in violation of
the
preceding sentence and the Notes 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 upon 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 10.06 is knowingly
made
in contemplation of such benefits.
80
SECTION 10.07. |
Notice
to Trustee.
|
Either
Issuer or any Guarantor shall give prompt written notice to the Trustee of
any
fact known to such Issuer or any such Guarantor which would prohibit the making
of any payment to or by the Trustee at its Corporate Trust Office in respect
of
the Guarantees. Notwithstanding the provisions of this Article Ten or any other
provision of this Indenture, the Trustee shall not be charged with knowledge
of
the existence of any facts which would prohibit the making of any payment to
or
by the Trustee in respect of the Guarantees, unless and until the Trustee shall
have received written notice thereof from the Issuers no later than two Business
Days prior to such payment; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of this Section 10.07, and
subject to the provisions of Sections 7.01 and 7.02, shall be entitled in all
respects to assume that no such facts exist; provided,
however,
that if
the Trustee shall not have received the notice referred to in this Section
10.07
at least two Business Days prior to the date upon which by the terms hereof
any
such payment may become payable for any purpose under this Indenture (including,
without limitation, the payment of the principal of, premium, if any, or
interest on any Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such
money and to apply the same to the purpose for which such money was received
and
shall not be affected by any notice to the contrary which may be received by
it
less than one Business Day prior to such date.
ARTICLE
ELEVEN
MISCELLANEOUS
SECTION 11.01. |
Trust
Indenture Act Controls.
|
If
any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control. If any provision of this Indenture modifies
any TIA provision that may be so modified, such TIA provision shall be deemed
to
apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall
be
excluded from this Indenture.
The
provisions of TIA §§ 310 through 317 that impose duties on any Person (including
the provisions automatically deemed included unless expressly excluded by this
Indenture) are a part of and govern this Indenture, whether or not physically
contained herein.
SECTION 11.02. |
Notices.
|
Except
for notice or communications to Holders, any notice or communication shall
be
given in writing and delivered in person, sent by facsimile, delivered by
commercial courier service or mailed by first class mail, postage prepaid,
addressed as follows:
81
If
to the
Issuers or any Guarantor:
PCA
LLC
000
Xxxxxxxx-Xxxx Xxxx Xxxx
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Chief Financial Officer
Fax
Number: (000) 000-0000
with
a
copy to:
XXXX,
WEISS, RIFKIND, XXXXXXX & XXXXXXXX LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
Fax
Number: (000) 000-0000
If
to the
Trustee, Registrar or Paying Agent:
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.
000
Xxxxxxx Xxxxxx
Xxxxx
00X
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Corporate Trust Administration
Fax
Number: (000) 000-0000
Such
notices or communications shall be effective when received and shall be
sufficiently given if so given within the time prescribed in this
Indenture.
The
Issuers, the Guarantors or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any
notice or communication mailed to a Noteholder shall be mailed to him by first
class mail, postage prepaid, at his address shown on the register kept by the
Registrar.
Failure
to mail a notice or communication to a Noteholder or any defect in it shall
not
affect its sufficiency with respect to other Noteholders. If a notice or
communication to a Noteholder is mailed in the manner provided above, it shall
be deemed duly given, whether or not the addressee receives it.
In
case
by reason of the suspension of regular mail service, or by reason of any other
cause, it shall be impossible to mail any notice as required by this Indenture,
then such method of notification as shall be made with the approval of the
Trustee shall constitute a sufficient mailing of such notice.
82
SECTION 11.03. |
Communications
by Holders with Other Holders.
|
Noteholders
may communicate pursuant to TIA § 312(b) with other Noteholders with respect to
their rights under this Indenture or the Notes. The Issuers, the Guarantors,
the
Trustee, the Registrar and anyone else shall have the protection of TIA §
312(c).
SECTION 11.04. |
Certificate
and Opinion as to Conditions Precedent.
|
Upon
any
request or application by the Issuers or any Guarantor to the Trustee to take
any action under this Indenture or the Collateral Agreements, the Issuers or
such Guarantor shall furnish to the Trustee:
(1) an
Officers’ Certificate (which shall include the statements set forth in Section
11.05 below) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture or the Collateral Agreements
relating to the proposed action have been complied with; and
(2) an
Opinion of Counsel (which shall include the statements set forth in Section
11.05 below) stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.05. |
Statements
Required in Certificate and Opinion.
|
Each
certificate and opinion with respect to compliance by or on behalf of the
Issuers or any Guarantor with a condition or covenant provided for in this
Indenture and the Collateral Agreements shall include:
(1) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of such Person, it or he has made such
examination or investigation as is necessary to enable it or him to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a
statement as to whether or not, in the opinion of such Person, such covenant
or
condition has been complied with.
SECTION 11.06. |
Rules
by Trustee and Agents.
|
The
Trustee may make reasonable rules for action by or meetings of Noteholders.
The
Registrar and Paying Agent may make reasonable rules for their
functions.
83
SECTION 11.07. |
Business
Days; Legal Holidays.
|
A
“Business
Day”
or
“business
day”
is a
day that is not a Legal Holiday. A “Legal
Holiday”
is a
Saturday, a Sunday or other day on which (i) commercial banks in the City of
New
York are authorized or required by law to close or (ii) the New York Stock
Exchange is not open for trading. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding
day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 11.08. |
Governing
Law.
|
This
Indenture, the Notes and the Guarantees shall be governed by and construed
in
accordance with the laws of the State of New York, but without giving effect
to
applicable principles of conflicts of law to the extent that the application
of
the law of another jurisdiction would be required thereby.
SECTION 11.09. |
No
Adverse Interpretation of Other Agreements.
|
This
Indenture may not be used to interpret another indenture, loan, security or
debt
agreement of the Company or any Subsidiary thereof. No such indenture, loan,
security or debt agreement may be used to interpret this Indenture.
SECTION 11.10. |
Successors.
|
All
agreements of the Issuers and the Guarantors in this Indenture and the Notes
shall bind their respective successors. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall bind its
successor.
SECTION 11.11. |
Multiple
Counterparts.
|
The
parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent
one
and the same agreement.
SECTION 11.12. |
Table
of Contents, Headings, etc.
|
The
table
of contents, crossreference sheet and headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are not
to
be considered a part hereof, and shall in no way modify or restrict any of
the
terms or provisions hereof.
84
SECTION 11.13. |
Separability.
|
Each
provision of this Indenture shall be considered separable and if for any reason
any provision which is not essential to the effectuation of the basic purpose
of
this Indenture or the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
ARTICLE
TWELVE
SECURITY
SECTION 12.01. |
Grant
of Security Interest.
|
(1) To
secure
the due and punctual payment of the principal of, premium, if any, and interest,
if any, on the Notes and amounts due hereunder and under the Guarantees when
and
as the same shall be due and payable, whether on an Interest Payment Date,
by
acceleration, purchase, repurchase, redemption or otherwise, and interest on
the
overdue principal of, premium, if any, and interest (to the extent permitted
by
law), if any, on the Notes and the performance of all other Obligations of
the
Company and the Guarantors to the Holders, the Collateral Agent or the Trustee
under this Indenture, the Collateral Agreements, the Guarantees and the Notes,
the Company and the Guarantors hereby covenant to cause the Collateral
Agreements to be executed and delivered concurrently with this Indenture. The
Collateral Agreements shall provide for the grant of security interests in
the
Collateral by the Company and Guarantors party thereto to the Collateral Agent.
Notwithstanding anything to the contrary herein, no Collateral shall consist
of
any Excluded Assets.
(2) The
Trustee and each Holder, by its acceptance of a Note, (i) appoints the
Collateral Agent to act as its agent (and by its signature below, the Collateral
Agent accepts such appointment) and (ii) consents and agrees to the terms of
each Collateral Agreement, as the same may be in effect or may be amended from
time to time in accordance with their respective terms, and authorizes and
directs the Collateral Agent to enter into the Collateral Agreements and to
perform its obligations and exercise its rights thereunder in accordance
therewith. The Company shall, and shall cause each of its Subsidiaries to,
do or
cause to be done, at its sole cost and expense, all such actions and things
as
may be necessary or proper, or as may be required by the provisions of the
Collateral Agreements, to assure and confirm to the Collateral Agent the
security interests in the Collateral contemplated hereby and by the Collateral
Agreements, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes and Guarantees
secured hereby, according to the intent and purpose herein and therein
expressed. The Company shall, and shall cause each of its Subsidiaries to,
take
any and all actions required or as may be reasonably requested by the Collateral
Agent to cause the Collateral Agreements to create and maintain, as security
for
the Obligations contained in this Indenture, the Notes, the Collateral
Agreements and the Guarantees, valid and enforceable, perfected (except as
expressly provided herein or therein) security interests in and on all the
Collateral, in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons (except as contemplated by the Intercreditor
Agreement), and subject to no other Liens (other than Permitted Liens), in
each
case, except as expressly provided herein or therein.
85
SECTION 12.02. |
Recording
and Opinions.
|
The
Company shall, and shall cause each of its Subsidiaries to, at its sole cost
and
expense, take or cause to be taken all action required to perfect, maintain,
preserve and protect the security interests in the Collateral granted by the
Collateral Agreements to the extent such security interests may be perfected
by
filings or taking of control under the applicable Uniform Commercial Code,
filings with the United States Patent and Trademark Office or the United States
Copyright Office and recordings of the mortgages, including (i) the filing
of
financing statements, continuation statements, collateral assignments and any
instruments of further assurance, in such manner and in such places as may
be
required by law to preserve and protect fully the rights of the Holders, the
Collateral Agent, and the Trustee under this Indenture and the Collateral
Agreements to all property comprising the Collateral, and (ii) the delivery
of
the certificates evidencing the securities pledged under the Security Agreement,
duly endorsed in blank or accompanied by undated stock powers or other
instruments of transfer executed in blank, it being understood that concurrently
with the execution of this Indenture the Company and its Subsidiaries have
delivered financing statements for filing by the Initial Purchaser or its
agents. The Company shall from time to time promptly pay all financing and
continuation statement recording and/or filing fees, charges and recording
and
similar taxes relating to this Indenture, the Collateral Agreements and any
amendments hereto or thereto and any other instruments of further assurance
required pursuant hereto or thereto.
To
the
extent required by Section 3.14(b) of the TIA, the Company shall furnish to
the
Trustee and the Collateral Agent (if other than the Trustee), on or within
one
month of July 1 of each year, commencing July 1, 2006, an Opinion of Counsel
either (i) stating that, in the opinion of such counsel, all action necessary
to
perfect or continue the perfection of the security interests created by the
Collateral Agreements to the extent such security interests may be perfected
by
filings or taking of control under the applicable Uniform Commercial Code,
filings with the United States Patent and Trademark Office or the United States
Copyright Office and recordings of the mortgages and reciting the details of
such action or referring to prior Opinions of Counsel in which such details
are
given have been taken or (ii) stating that, in the Opinion of such Counsel,
no
such action is necessary to perfect or continue the perfection of any security
interest created under any of the Collateral Agreements
SECTION 12.03. |
Release of Collateral.
|
(a) The
Collateral Agent shall not at any time release Collateral from the security
interests created by the Collateral Agreements unless such release is in
accordance with the provisions of this Indenture and the applicable Collateral
Agreements.
(b) At
any
time when an Event of Default shall have occurred and be continuing, no release
of Collateral pursuant to the provisions of this Indenture and the Collateral
Agreements (except to the extent specifically provided in any such provision)
shall be effective as against the Holders.
(c) The
release of any Collateral from the terms of the Collateral Agreements shall
not
be deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Collateral is released pursuant
to
this Indenture and the Collateral Agreements. To the extent applicable and
except as provided under Section 12.03(d) or (e) below, the Issuers will cause
Section 313(b) of the TIA, relating to reports, and Section 314(d)
of
the TIA, relating to the release of property and to the substitution therefor
of
any property to be pledged as Collateral for the Notes, to be complied with.
Any
certificate or opinion required by Section 314(d) of the TIA may be
made by
an Officer of the Issuers except in cases where Section 314(d) requires
that such certificate or opinion be made by an independent engineer, appraiser
or other expert, who shall be reasonably satisfactory to the Trustee.
Notwithstanding anything to the contrary in this paragraph, the Issuers will
not
be required to comply with all or any portion of Section 314(d) of the
TIA
(i) to the extent provided under Section 12.03(d) or (e) below or (ii) if they
otherwise determine, in good faith based on Opinion of Counsel, that under
the
terms of Section 314(d) and/or any interpretation or guidance as to
the
meaning thereof of the SEC and its staff, including “no action” letters or
exemptive orders, all or any portion of Section 314(d) is
inapplicable.
86
(d) Notwithstanding
any provision to the contrary herein, so long as no Event of Default under
the
Indenture would result therefrom, the Issuers and the Guarantors may, among
other things, without any release or consent by the Trustee or Collateral Agent,
conduct ordinary course activities with respect to the Collateral, including,
without limitation, (i) selling or otherwise disposing of in any transaction
or
series of related transactions, any property subject to the Lien of the
Collateral Agreements which has become worn out, defective or obsolete or not
used or useful in the business; (ii) abandoning, terminating, canceling,
releasing or making alterations in or substitutions of any leases or contracts
subject to the Lien of the Indenture or any of the Collateral Agreements; (iii)
surrendering or modifying any franchise, license or permit subject to the Lien
of the Indenture or any of the Collateral Agreements which it may own or under
which it may be operating; altering, repairing, replacing, changing the location
or position of and adding to its structures, machinery, systems, equipment,
fixtures and appurtenances: (iv) granting a license of any intellectual
property; (v) selling, transferring or otherwise disposing of inventory; (vi)
selling, collecting, liquidating, factoring or otherwise disposing of accounts
receivable; (vii) making cash payments (including for the scheduled repayment
of
Indebtedness or the acquisition of additional assets) from cash that is at
any
time part of the Collateral in the ordinary course of business that are not
otherwise prohibited by the Indenture and the Collateral Agreements; and (viii)
abandoning any intellectual property which is no longer useful or useful in
the
Issuers’ business; in case of each of clauses (i)-(viii), to the extent in the
ordinary course of business of the Issuers or the applicable Guarantor. The
Issuers must deliver to the Collateral Agent, within 30 calendar days following
the end of each six-month period beginning on January 1 and July 1 of any year,
an Officer’s Certificate to the effect that all releases and withdrawals during
the preceding six-month period (or since the Issue Date, in the case of the
first such certificate) in which no release or consent of the Collateral Agent
was obtained in the ordinary course of the Issuers’ and the Guarantors’ business
were not prohibited by the Indenture.
(e) Notwithstanding
any provision to the contrary herein, Collateral comprised of accounts
receivable, inventory or (prior to the occurrence and during the continuance
of
an Event of Default) the proceeds of the foregoing shall be subject to release
upon sales of such inventory and collection of the proceeds of such accounts
receivable in the ordinary course of business.
87
SECTION 12.04. |
Specified
Releases of Collateral.
|
(a) Subject
to Section
12.03,
Collateral may be released from the Lien and security interest created by the
Collateral Agreements at any time or from time to time in accordance with the
provisions of the Collateral Agreements, including the Intercreditor Agreement,
or as provided hereby.
(b) The
Issuers shall be entitled to releases of assets included in the Collateral
from
the Liens securing the Notes under any one or more of the following
circumstances:
(1) to
enable
the Issuers and their Subsidiaries to consummate Asset Sales or Transfers that
are not Asset Sales permitted under Section
4.12;
(2) if
any
Subsidiary that is a Guarantor is released from its Guarantee in accordance
with
the terms of the Indenture, that Subsidiary’s assets will also be
released;
(3) if
the
Issuers exercise their Legal Defeasance or Covenant Defeasance option as
described in Section
9.01;
(4) upon
satisfaction and discharge of the Indenture or payment in full in cash of the
principal of, and premium, if any, accrued and unpaid interest, if any, on
the
Notes and all other obligations that are then due and payable;
(5) with
the
consent of the Holders of at least 66⅔% (or, with respect to the release of all
or substantially all of the Collateral otherwise than in accordance with the
Indenture or the Collateral Agreements, 75%) of the aggregate principal amount
of the outstanding Notes (including, without limitation, consents obtained
in
connection with a tender offer or exchange offer for, or purchase of,
Notes);
(6) if
any
Collateral is condemned, seized or taken by the power of eminent domain or
otherwise confiscated pursuant to an Event of Loss; or
(7) in
connection with the exercise of remedies by the lenders under the Credit
Agreement or Letters of Credit Facility.
(c) To
the
extent required under the TIA or by the terms of the Collateral Agreements
or
the Indenture and except as provided in Section 12.03(b), (d) or (e) above,
the
Issuers shall furnish to the Trustee, prior to each proposed release of
Collateral by the Issuers or a Guarantor:
(1) an
Officers’ Certificate and Opinion of Counsel and such other documentation as
required by the Indenture;
(2) all
documents required by §314(d) of the TIA, the Collateral Agreement, the
Intercreditor Agreement and the Indenture; and
88
(3) an
Opinion of Counsel to the effect that such accompanying documents constitute
all
documents required by §314(d) of the TIA, the Collateral Agreements, the
Intercreditor Agreement and the Indenture.
Upon
compliance by the Issuers, with the conditions precedent set forth above, and
upon delivery by the Issuers to the Trustee of an Opinion of Counsel to the
effect that such conditions precedent have been complied with the security
interests in the released Collateral shall be automatically released and the
Trustee or the Collateral Agent shall promptly cause to be released and
reconveyed to the Issuers or the applicable Guarantor the released
Collateral.
SECTION 12.05. |
Release
upon Satisfaction or Defeasance of All Outstanding
Obligations.
|
The
Liens
on, and pledges of, all Collateral will also be terminated and released upon
(i) payment in full of the principal of, premium, if any, on, and accrued
and unpaid interest, if any, on the Notes and all other Obligations hereunder,
the Guarantees and the Collateral Agreements that are due and payable at or
prior to the time such principal, premium, if any, and accrued and unpaid
interest, if any, are paid, (ii) a satisfaction and discharge of this
Indenture as described above under Section
8.02
and
(iii) the occurrence of a Legal Defeasance or Covenant Defeasance as
described above under Section
8.01.
SECTION 12.06. |
Form
and Sufficiency of Release.
|
In
the
event that the Company or any Guarantor has sold, exchanged, or otherwise
disposed of or proposes to sell, exchange or otherwise dispose of any portion
of
the Collateral that may be sold, exchanged or otherwise disposed of by the
Company or such Guarantor, and the Company or such Guarantor requests in writing
the Collateral Agent to furnish a written disclaimer, release or quit-claim
of
any interest in such property under this Indenture and the Collateral
Agreements, the Collateral Agent shall execute, acknowledge and deliver to
the
Company or such Guarantor (in proper form prepared by the Company or such
Guarantor) such an instrument promptly after satisfaction of the conditions
set
forth herein for delivery of any such release. Notwithstanding the preceding
sentence, all purchasers and grantees of any property or rights purporting
to be
released herefrom shall be entitled to rely upon any release executed by the
Collateral Agent hereunder as sufficient for the purpose of this Indenture
and
as constituting a good and valid release of the property therein described
from
the Lien of this Indenture or of the Collateral Agreements.
SECTION 12.07. |
Purchaser
Protected.
|
No
purchaser or grantee of any property or rights purporting to be released
herefrom shall be bound to ascertain the authority of the Trustee or the
Collateral Agent to execute the release or to inquire as to the existence of
any
conditions herein prescribed for the exercise of such authority; nor shall
any
purchaser or grantee of any property or rights permitted by this Indenture
to be
sold or otherwise disposed of by the Company be under any obligation to
ascertain or inquire into the authority of the Company to make such sale or
other disposition.
89
SECTION 12.08. |
Authorization
of Actions to be Taken by the Collateral Agent Under the Collateral
Agreements.
|
Subject
to the provisions of the applicable Collateral Agreements, the Trustee and
each
Holder, by acceptance of its Note(s) agrees that (a) the Collateral Agent shall
execute and deliver the Collateral Agreements and act in accordance with the
terms thereof, (b) the Collateral Agent may, in its sole discretion and without
the consent of the Trustee or the Holders, take all actions it deems necessary
or appropriate in order to (i) enforce any of the terms of the Collateral
Agreements, subject to the terms of the Intercreditor Agreement, and (ii)
collect and receive any and all amounts payable in respect of the Obligations
of
the Company and the Guarantors hereunder and under the Notes, the Guarantees
and
the Collateral Agreements, subject to the terms of the Intercreditor Agreement
and (c) subject to the terms of the Intercreditor Agreement, the Collateral
Agent shall have power to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by any
act
that may be unlawful or in violation of the Collateral Agreements or this
Indenture, and suits and proceedings as the Collateral Agent may deem expedient
to preserve or protect its interests and the interests of the Trustee and the
Holders in the Collateral (including the power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional
or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest thereunder or be prejudicial
to
the interests of the Collateral Agent, the Holders or the Trustee).
Notwithstanding the foregoing, the Collateral Agent may, at the expense of
the
Company, request the direction of the Holders with respect to any such actions
and upon receipt of the written consent of the Holders of at least a majority
in
aggregate principal amount of the outstanding Notes, shall take such actions;
provided
that all
actions so taken shall, at all times, be in conformity with the requirements
of
the Intercreditor Agreements and applicable laws, rules and
regulations.
SECTION 12.09. |
Authorization
of Receipt of Funds by the Trustee Under the Collateral
Agreements.
|
The
Collateral Agent is authorized to receive any funds for the benefit of itself,
the Trustee and the Holders distributed under the Collateral Agreements and
to
the extent not prohibited under the Intercreditor Agreement, for turnover to
the
Trustee to make further distributions of such funds to itself, the Trustee
and
the Holders in accordance with the provisions of Section
6.10
and the
other provisions of this Indenture.
SECTION 12.10. |
Intercreditor
Agreement.
|
This
Article
Twelve,
the
Mortgages and the Security Agreement are subject to the terms, limitations
and
conditions set forth in the Intercreditor Agreement and applicable laws, rules
and regulations.
90
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
all
as of the date and year first written above.
PCA
LLC
PCA
Finance Corp.
By: __/s/
Xxxxx X. Feld_______________________
Name:
Xxxxx X.
Xxxx
Title:
President and
CEO
Guarantors:
Portrait
Corporation of America, Inc.
American
Studios,
Inc.
PCA
National
LLC
PCA
Photo Corporation
of Canada, Inc.
Hometown
Threads
LLC
Photo
Corporation of
America
By: __/s/
Xxxxx X. Feld___________________
Name:
Xxxxx X.
Xxxx
Title:
President and
CEO
PCA
National of Texas L.P.
By: PCA
National LLC,
its
general
partner
By: __/s/
Xxxxx X. Feld_____________________
Name:
Xxxxx X.
Xxxx
Title:
President and
CEO
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee
By: __/s/
Xxxxx X. Kaye_______________________
Name:
Xxxxx X. Xxxx
Title:
Assistant Vice President
EXHIBIT
A
CUSIP
PCA
LLC
PCA
Finance Corp.
No. $
14%
SENIOR
SECURED NOTE DUE 2009
PCA
LLC,
a Delaware limited liability company, as issuer (the “Company”),
and
PCA Finance Corp., a Delaware corporation, as co-issuer (“PCA
Finance”
and,
collectively with the Company, the “Issuers”),
for
value received, promise to pay to [ ] or registered assigns the principal sum
of
$[ ] dollars on June 1, 2009.
Interest
Payment Dates: the first day of each month.
Record
Dates: the 15th
day of
the immediately preceding month.
Reference
is made to the further provisions of this Note contained herein, which will
for
all purposes have the same effect as if set forth at this place.
A-1
IN
WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or
by
facsimile by its duly authorized officers.
PCA
LLC
PCA
Finance Corp.
By:
Name:
Title:
By:
Name:
Title:
A-2
Certificate
of Authentication
This
is
one of the 14% Senior Secured Notes Due 2009 referred to in the within mentioned
Indenture.
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee
By:
Dated:
A-3
[FORM
OF
REVERSE OF NOTE]
PCA
LLC
PCA
Finance Corp.
14%
SENIOR
SECURED NOTE DUE 2009
1. Interest.
PCA
LLC, a Delaware limited liability company, as issuer (the “Company”),
and
PCA Finance Corp., a Delaware corporation, as co-issuer (“PCA
Finance”
and,
collectively with the Company, the “Issuers”),
promise to pay, until the principal hereof is paid or made available for
payment, interest on the principal amount set forth on the face hereof at a
rate
of 14% per annum. Interest hereon will accrue from and including the most recent
date to which interest has been paid or, if no interest has been paid, from
and
including July 15, 2005 to but excluding the date on which interest is paid.
Interest shall be payable in arrears on the first day of each month. Interest
will be computed on the basis of a 360 day year of twelve 30 day months and
actual days elapsed. The Issuers shall pay interest on overdue principal and
on
overdue interest (to the full extent permitted by law) at the rate borne by
the
Notes.
2. Method
of Payment.
The
Issuers will pay interest hereon (except defaulted interest) to the Persons
who
are registered Holders at the close of business on the 15th
day of
the immediately preceding month of the interest payment date (whether or not
a
Business Day). Holders must surrender Notes to a Paying Agent to collect
principal payments. The Issuers will pay principal and interest in money of
the
United States of America that at the time of payment is legal tender for payment
of public and private debts. Interest may be paid by check mailed to the Holder
entitled thereto at the address indicated on the register maintained by the
Registrar for the Notes.
3. Paying
Agent and Registrar.
Initially, The Bank of New York Trust Company, N.A. (the “Trustee”) will act as
a Paying Agent and Registrar. The Issuers may change any Paying Agent or
Registrar without notice. The Company or any of its Affiliates may act as Paying
Agent or Registrar.
4. Indenture.
The
Issuers issued the Notes under an Indenture dated as of July 15, 2005 (the
“Indenture”) among the Issuers, the Guarantors (as defined in the Indenture) and
the Trustee. This is one of an issue of Notes of the Issuers issued, or to
be
issued, under 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. Code §§ 77aaa77bbbb), as amended from time to
time. The Notes are subject to all such terms, and Holders are referred to
the
Indenture and such Act for a statement of them. Capitalized and certain other
terms used herein and not otherwise defined have the meanings set forth in
the
Indenture.
5. Redemption.
(a) Optional
Redemption prior to December 1, 2006.
The
Notes are redeemable (subject to the right of Holders of record on the relevant
record date to receive interest due on an interest payment date that is on
or
prior to the date fixed for redemption) in whole at any time or in part from
time to time prior to December 1, 2006, at the option of the Issuers, at a
redemption price equal to the greater of:
A-4
(1)
|
101%
of the aggregate principal amount of the Notes being redeemed, plus
accrued and unpaid interest, if any, thereon to the Redemption Date;
and
|
(2)
|
the
sum of the present values of 107% of the aggregate principal amount
of
such Notes and scheduled payments of interest on such Notes to and
including December 1, 2006, discounted to the Redemption Date on
a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 50 basis points, together with
accrued
and unpaid interest, if any, to the Redemption
Date.
|
(b) Optional
Redemption on or after December 1, 2006.
The
Notes are redeemable (subject to the rights of Holders of record on the relevant
Record Date to receive interest due on an Interest Payment Date that is on
or
prior to the date fixed for redemption) in whole at any time or in part from
time to time on or after December 1, 2006, at the option of the Issuers, at
the
following redemption prices (expressed as percentages of the aggregate principal
amount thereof) if redeemed during the six-month period commencing on dates
set
forth below:
Six-Month
Period
|
Percentage
|
December
1, 2006
|
107.000%
|
June
1, 2007
|
105.250%
|
December
1, 2007
|
103.500%
|
June
1, 2008
|
101.750%
|
December
1, 2008 and thereafter
and thereafter
|
100.000%
|
In
addition, the Issuers must pay accrued and unpaid interest, if any, on the
aggregate principal amount of the Notes redeemed to (but not including) the
Redemption Date.
(c) Optional
Redemption upon Qualified Equity Offerings.
At any
time, or from time to time, on or prior to December 1, 2006, the Issuers may,
at
their option, use an amount not to exceed the net cash proceeds of one or more
Qualified
Equity
Offerings to redeem up to 35% of the aggregate principal amount of the Notes
originally issued under the Indenture at a redemption price of 114.000% of
the
aggregate principal amount thereof, plus accrued and unpaid interest, if any,
to
the date of redemption, provided
that:
(1) at
least
65% of the original principal amount of Notes issued under the Indenture remains
outstanding immediately after any such redemption; and
(2) the
Issuers make such redemption not more than 120 days after the consummation
of
any such Qualified Equity Offering.
6. Selection
and Notice of Redemption.
In the
event that fewer than all of the Notes are to be redeemed, the Trustee will
select the Notes to be redeemed, if the Notes are listed on a national
securities exchange, in accordance with the rules of the principal national
securities exchange on which the Notes are listed, if the Notes are not so
listed, either on a pro rata
basis or
by lot, or such other method as the Trustee shall deem fair and appropriate;
provided
that,
in
the case of a redemption pursuant to Section 5(c) above, the Trustee will select
the Notes only on a pro
rata basis
or
on as nearly a pro
rata basis
as
is practicable (subject to procedures of the Depositary). Notice of redemption
will be mailed at least 30 days but not more than 60 days before the Redemption
Date to each Holder of Notes to be redeemed at its registered address. On and
after the Redemption Date, unless the Issuers default in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the Redemption Date.
A-5
7. Offers
To Purchase.
The
Indenture provides that upon the occurrence of a Change of Control or an Asset
Sale and subject to further limitations contained therein, the Company shall
make an offer to purchase outstanding Notes in accordance with the procedures
set forth in the Indenture.
8. Denominations,
Transfer, Exchange.
The
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
to
it any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Notes or portion
of
a Note selected for redemption, or register the transfer of or exchange any
Notes for a period of 15 days before a mailing of notice of
redemption.
9. Persons
Deemed Owners.
The
registered Holder of this Note may be treated as the owner of this Note for
all
purposes.
10. Unclaimed
Money.
If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee will pay the money back to the Company at its written request.
After
that, Holders entitled to the money must look to the Issuers for payment as
general creditors unless an “abandoned property” law designates another
Person.
11. Amendment,
Supplement, Waiver, Etc.
The
Issuers, the Guarantors and the Trustee (if a party thereto) may, without the
consent of the Holders of any outstanding Notes, amend, waive or supplement
the
Indenture or the Notes for certain specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies, maintaining the
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended, and making any change that does not materially and adversely affect
the
rights of any Holder. Other amendments and modifications of the Indenture or
the
Notes may be made by the Issuers, the Guarantors and the Trustee with the
consent of the Holders of at least 66⅔% (or,
with
respect to the release of all or substantially all of the Collateral otherwise
than in accordance with the Indenture or the Collateral Agreements,
75%)
of the
aggregate principal amount of the outstanding Notes, subject to certain
exceptions requiring the consent of the Holders of the particular Notes to
be
affected.
12. Restrictive
Covenants.
The
Indenture imposes certain limitations on the ability of the Company and its
Subsidiaries to, among other things, incur additional Indebtedness, pay
dividends on, redeem or repurchase its Capital Stock, make certain investments,
sell assets, create restrictions on the payment of dividends or other amounts
to
the Company from its Subsidiaries, enter into transactions with Affiliates,
expand into unrelated businesses, create liens, enter into sale and leaseback
transactions or consolidate, merge or sell all or substantially all of the
assets of the Company and its Subsidiaries and requires the Issuers to provide
reports to Holders of the Notes. Such limitations are subject to a number of
important qualifications and exceptions. Pursuant to Section 4.06 of the
Indenture, the Issuers must annually report to the Trustee on compliance with
such limitations.
A-6
13. Successor
Corporation.
When a
successor corporation assumes all the obligations of its predecessor under
the
Notes and the Indenture and the transaction complies with the terms of Article
Five of the Indenture, the predecessor corporation will, except as provided
in
Article Five, be released from those obligations.
14. Defaults
and Remedies.
Events
of Default are set forth in the Indenture. Subject to certain limitations in
the
Indenture, if an Event of Default (other than an Event of Default specified
in
Section 6.01(7) or (8) of the Indenture with respect to either Issuer) occurs
and is continuing, then, and in each and every such case, either the Trustee,
by
notice in writing to the Issuers, or the Holders of not less than 25% of the
principal amount of the Notes then outstanding, by notice in writing to the
Issuers and the Trustee, may declare due and payable, if not already due and
payable, the principal of and any accrued and unpaid interest on all of the
Notes; and upon any such declaration all such amounts upon such Notes shall
become and be immediately due and payable, anything in this Indenture or in
the
Notes to the contrary notwithstanding. If an Event of Default specified in
Section 6.01(7) or (8) of the Indenture occurs with respect to either Issuer,
then the principal of and any accrued and unpaid interest on all of the Notes
shall immediately become due and payable without any declaration or other act
on
the part of the Trustee or any Holder. Holders may not enforce the Indenture
or
the Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of at least 66⅔% (or, with respect to the release
of all or substantially all of the Collateral otherwise than in accordance
with
the Indenture or the Collateral Agreements, 75%) of the aggregate principal
amount of the outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal, premium, if any, or interest
on the Notes or a default in the observance or performance of any of the
obligations of the Issuers under Article Five of the Indenture) if it determines
that withholding notice is in their best interests.
15. Trustee
Dealings with Company.
The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and
may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
16. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, agent, member
or stockholder or Affiliate of the Issuers, as such, shall have any liability
for any obligations of the Issuers under the Notes, the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. No past, present or future director, officer, employee, incorporator,
agent or stockholder or Affiliate of any of the Guarantors, as such, shall
have
any liability for any obligations of the Guarantors under the Guarantees, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes and Guarantees by accepting
a Note and a Guarantee waives and releases all such liabilities. The waiver
and
release are part of the consideration for issuance of the Notes and the
Guarantees.
A-7
17. Discharge.
The
Issuers’ obligations pursuant to the Indenture will be discharged, except for
obligations pursuant to certain sections thereof, subject to the terms of the
Indenture, upon the payment of all the Notes or upon the irrevocable deposit
with the Trustee of United States dollars or U.S. Government Obligations
sufficient to pay when due principal of and interest on the Notes to maturity
or
redemption, as the case may be.
18. Guarantees.
The
Note will be entitled to the benefits of certain Guarantees made for the benefit
of the Holders. Reference is hereby made to the Indenture for a statement of
the
respective rights, limitations of rights, duties and obligations thereunder
of
the Guarantors, the Trustee and the Holders.
19. Authentication.
This
Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
20. Governing
Law.
THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE
OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY. The Trustee, the Issuers and the Guarantors agree to submit
to the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to the Indenture or the
Notes.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such
as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT
TEN
(= joint tenants with right of survivorship and not as tenants in common),
CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The
Issuers will furnish to any Holder upon written request and without charge
a
copy of the Indenture. Requests may be made to:
PCA
LLC
PCA
Finance Corp.
c/o
PCA
LLC
000
XxxxxxxxXxxx Xxxx Xxxx
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Chief Financial Officer
A-8
ASSIGNMENT
I
or we
assign and transfer this Note to:
(Insert
assignee’s social security or tax I.D. number)
(Print
or
type name, address and zip code of assignee)
and
irrevocably appoint:
Agent
to
transfer this Note on the books of the Issuers. The Agent may substitute another
to act for him.
Date: Your
Signature:
(Sign
exactly as your name appears on
the
other
side of this Note)
Signature
Guarantee: ______________________________
SIGNATURE
GUARANTEE
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or such
other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-9
OPTION
OF
HOLDER TO ELECT PURCHASE
If
you
want to elect to have all or any part of this Note purchased by the Company
pursuant to Section
4.08
or
Section
4.12
of the
Indenture, check the appropriate box:
● Section
4.08 ● Section
4.12
If
you
want to have only part of the Note purchased by the Company pursuant to Section
4.08 or Section 4.12 of the Indenture, state the amount you elect to have
purchased:
$
(multiple
of $1,000)
Date:
Your
Signature: ______________________________
(Sign
exactly as your name appears on the
face
of
this Note)
Signature
Guaranteed
SIGNATURE
GUARANTEE
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or such
other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-10
EXHIBIT
B
[FORM
OF
LEGEND FOR 144A NOTES AND OTHER NOTES THAT ARE
RESTRICTED
NOTES]
The
Notes evidenced hereby have not been registered under the United States
Securities Act of 1933 (the “Securities Act”) and may not be offered, sold,
pledged or otherwise transferred except (a) (1) to a person whom the seller
reasonably believes is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act purchasing for its own account or for the
account of a qualified institutional buyer in a transaction meeting the
requirements of Rule 144A, (2) in an offshore transaction complying with Rule
903 or Rule 904 of Regulation S under the Securities Act, (3) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available), (4) to an institutional accredited investor in a
transaction exempt from the registration requirements of the Securities Act
or
(5) pursuant to an effective registration statement under the Securities Act
and
(b) in accordance with all applicable securities laws of the United States
and
other jurisdictions.
B-1
[FORM
OF
ASSIGNMENT FOR 144A NOTES AND OTHER NOTES THAT ARE
RESTRICTED
NOTES]
I
or we
assign and transfer this Note to:
(Insert
assignee’s social security or tax I.D. number)
(Print
or
type name, address and zip code of assignee)
and
irrevocably appoint:
Agent
to
transfer this Note on the books of the Issuers. The Agent may substitute another
to act for him.
[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 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, 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 Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: Your
Signature:
(Sign
exactly as your name
appears
on the face of this Note)
Signature
Guarantee:
SIGNATURE
GUARANTEE
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or such
other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-2
TO
BE
COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act, and, accordingly, the Transferor hereby further certifies
that the beneficial interest or certificated Note is being Transferred to a
Person that the Transferor reasonably believed and believes is purchasing the
beneficial interest or certificated Note for its own account, or for one or
more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer”
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable securities
laws
of any state of the United States. Upon consummation of the proposed Transfer
in
accordance with the terms of the Indenture, the Transferred beneficial interest
or certificated Note will be subject to the restrictions on transfer enumerated
on the Rule 144A Notes and/or the certificated Note and in the Indenture and
the
Securities Act.
Dated:
NOTICE: To
be
executed by an executive
officer
B-3
EXHIBIT
C
[FORM
OF
LEGEND FOR REGULATION S NOTE]
This
Note has not been registered under the U.S. Securities Act of 1933, as amended
(the “Act”), and, unless so registered, may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. Persons unless
registered under the Act or except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Act.
C-1
[FORM
OF
ASSIGNMENT FOR REGULATION S NOTE]
I
or we
assign and transfer this Note to:
(Insert
assignee’s social security or tax I.D. number)
(Print
or
type name, address and zip code of assignee)
and
irrevocably appoint:
Agent
to
transfer this Note on the books of the Issuers. The Agent may substitute another
to act for him.
[Check
One]
[
] (a)
this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Regulation S
thereunder.
or
[
] (b)
this Note is being transferred other than in accordance with (a) above and
documents 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, 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 Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: Your
Signature:
(Sign
exactly as your name
appears
on the face of this Note)
Signature
Guarantee:
SIGNATURE
GUARANTEE
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or such
other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-2
TO
BE
COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities
of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer
in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed Transfer is being made prior to the expiration of the restricted period
under Regulation S, the Transfer is not being made to a U.S. Person or for
the
account or benefit of a U.S. Person (other than an initial purchaser). Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the Transferred beneficial interest or certificated Note will be
subject to the restrictions on Transfer enumerated on the Regulation S Notes
and/or the certificated Note and in the Indenture and the Securities
Act.
Dated:
NOTICE: To
be
executed by an executive
officer
C-3
EXHIBIT
D
[FORM
OF
LEGEND FOR GLOBAL NOTE]
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.
This Note is not exchangeable for Notes 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 issuer 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 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.
This
Note is subject to the terms and conditions of a certain Intercreditor and
Lien
Subordination agreement, dated as of July 15, 2005, by and among Xxxxx Fargo
Foothill, Inc., The Bank of New York Trust Company, N.A., Portrait Corporation
of America, Inc. and certain subsidiaries of Portrait Corporation of America,
Inc. Copies of such agreement may be obtained upon written request to the
Secretary of the Company.
D-1
EXHIBIT
E
Form
of
Certificate To Be
Delivered
in Connection with
Transfers
to Non-QIB Accredited Investors
The
Bank
of New York Trust Company, N.A.
PCA
LLC
PCA
Finance Corp.
x/x
Xxx
Xxxx xx Xxx Xxxx Trust Company, N.A.
000
Xxxxxxx Xxxxxx
Xxxxx
00X
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Corporate Trust Administration
Ladies
and Gentlemen:
In
connection with our proposed purchase of 14% Senior Secured Notes Due 2009
(the
“Notes”)
of PCA
LLC, a Delaware limited liability company, as issuer (the “Company”),
and
PCA Finance Corp., a Delaware corporation, as co-issuer (“PCA
Finance”
and,
collectively with the Company, the “Issuers”)
we
confirm that:
1. We
understand that any subsequent transfer of the Notes is subject to certain
restrictions and conditions set forth in the Indenture dated as of July 15,
2005
relating to the Notes and we agree to be bound by, and not to resell, pledge
or
otherwise transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the “Securities
Act”).
2. We
understand that the Notes have not been registered under the Securities Act
or
any other applicable securities laws, have not been and will not be qualified
for sale under the securities laws of any nonU.S. jurisdiction and that the
Notes may not be offered, sold, pledged or otherwise transferred except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that if we should
sell any Notes, we will do so only (i) to the Company or any subsidiary thereof,
(ii) in accordance with Rule 144A under the Securities Act to a “qualified
institutional buyer” (as defined in Rule 144A), (iii) to an institutional
“accredited investor” (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. brokerdealer) to you a signed letter
containing certain representations and agreements relating to the restrictions
on transfer of the Notes, (iv) outside the United States to persons other than
U.S. persons in offshore transactions meeting the requirements of Rule 904
of
Regulation S under the Securities Act, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if applicable)
or
(vi) pursuant to an effective registration statement, and we further agree
to
provide to any person purchasing any of the Notes from us a notice advising
such
purchaser that resales of the Notes are restricted as stated
herein.
E-1
3. We
understand that, on any proposed resale of any Notes, we will be required to
furnish to you and the Issuers such certifications, legal opinions and other
information as you and the Issuers may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand
that the Notes purchased by us will bear a legend to the foregoing
effect.
4. We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which we
are
acting each are able to bear the economic risk of our or their investment,
as
the case may be.
5. We
are
acquiring the Notes purchased by us for our account or for one or more accounts
(each of which is an institutional “accredited investor”) as to each of which we
exercise sole investment discretion.
6. We
are
not acquiring the Notes with a view toward the distribution thereof in a
transaction that would violate the Securities Act or the securities laws of
any
state of the United States or any other applicable jurisdiction.
You
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
proceeding or official inquiry with respect to the matters covered
hereby.
Very
truly yours,
[Name
of
Transferee]
By:
Name:
Title:
Date:
_______________________
E-2
EXHIBIT
F
Form
of
Certificate To Be Delivered
in
Connection with Transfers
Pursuant
to Regulation S
The
Bank
of New York Trust Company, N.A.
PCA
LLC
PCA
Finance Corp.
x/x
Xxx
Xxxx xx Xxx Xxxx Trust Company, N.A.
000
Xxxxxxx Xxxxxx
Xxxxx
00X
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Corporate Trust Administration
Re:
|
the
PCA LLC, a Delaware limited liability company, as issuer (the
“Company”),
and PCA Finance Corp., a Delaware corporation, as co-issuer (“PCA
Finance”
and, collectively with the Company, the “Issuers”)
14% Senior
Secured Notes Due 2009
(the
“Notes”)
|
Dear
Sirs:
In
connection with our proposed sale of $__________ aggregate principal amount
of
the Notes, 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 Notes was not made to a U.S. person or 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 offshore securities
market and neither we nor any person acting on our behalf knows that the
transaction has been prearranged 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 904(a) of Regulation S;
(4) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
(5) we
have
advised the transferee of the transfer restrictions applicable to the
Notes.
You
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:
F-1
EXHIBIT
G
GUARANTEES
Each
of
the undersigned (the “Guarantors”)
hereby
jointly and severally unconditionally guarantees, to the extent set forth in
the
Indenture dated as of July 15, 2005 by and among PCA LLC, a Delaware limited
liability company, as issuer (the “Company”),
PCA
Finance Corp., a Delaware corporation, as co-issuer (“PCA
Finance”
and,
collectively with the Company, the “Issuers”),
the
Guarantors, as guarantors, and The Bank of New York Trust Company, N.A., as
Trustee (as amended, restated or supplemented from time to time, the
“Indenture”),
and
subject to the provisions of the Indenture, (a) the due and punctual payment
of
the principal of, and premium, if any, and interest on the Notes, when and
as
the same shall become due and payable, whether at maturity, by acceleration
or
otherwise, the due and punctual payment of interest on overdue principal of,
and
premium and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Issuers to the Noteholders or the
Trustee, all in accordance with the terms set forth in Article Ten of the
Indenture, and (b) in case of any extension of time of payment or renewal of
any
Notes or any of such other obligations, that 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.
The
obligations of the Guarantors to the Noteholders and to the Trustee pursuant
to
this Guarantee and the Indenture are expressly set forth in Article Ten of
the
Indenture, and reference is hereby made to the Indenture for the precise terms
and limitations of this Guarantee. Each Holder of the Note to which this
Guarantee is endorsed, by accepting such Note, agrees to and shall be bound
by
such provisions.
[Signatures
on Following Pages]
G-1
IN
WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be signed
by a duly authorized officer.
Portrait
Corporation of America, Inc.
American
Studios, Inc.
PCA
National LLC
PCA
Photo
Corporation of Canada, Inc.
Hometown
Threads LLC
Photo
Corporation of America
By:
Name:
Xxxxx X. Xxxx
Title:
President and CEO
PCA
National of Texas L.P.
By: PCA
National LLC,
its
general partner
By:
Name:
Xxxxx X. Xxxx
Title:
President and CEO
G-2