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INDENTURE
Dated as of September 30, 1997
Among
HUNTSMAN PACKAGING CORPORATION, as Issuer,
each of the Guarantors named herein
and
THE BANK OF NEW YORK, as Trustee
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$125,000,000
9 1/8% Senior Subordinated Notes due 2007
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TABLE OF CONTENTS
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Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE.............................................1
SECTION 1.01 Definitions..................................................1
SECTION 1.02 Incorporation by Reference of TIA...........................28
SECTION 1.03 Rules of Construction.......................................28
ARTICLE TWO
THE NOTES.............................................................................29
SECTION 2.01 Form and Dating.............................................29
SECTION 2.02 Execution and Authentication;
Aggregate Principal Amount. ...............................29
SECTION 2.03 Registrar and Paying Agent..................................31
SECTION 2.04 Paying Agent To Hold Assets in Trust........................31
SECTION 2.05 Holder Lists................................................32
SECTION 2.06 Transfer and Exchange.......................................32
SECTION 2.07 Replacement Notes...........................................33
SECTION 2.08 Outstanding Notes...........................................33
SECTION 2.09 Treasury Notes..............................................34
SECTION 2.10 Temporary Notes.............................................34
SECTION 2.11 Cancellation................................................34
SECTION 2.12 Defaulted Interest..........................................35
SECTION 2.13 CUSIP Numbers...............................................35
SECTION 2.14 Deposit of Moneys...........................................36
SECTION 2.15 Book-Entry Provisions for Global Notes......................36
SECTION 2.16 Special Transfer Provisions.................................37
ARTICLE THREE
REDEMPTION............................................................................40
SECTION 3.01 Notices to Trustee..........................................40
SECTION 3.02 Selection of Notes To Be Redeemed...........................41
SECTION 3.03 Notice of Redemption........................................41
SECTION 3.04 Effect of Notice of Redemption..............................42
SECTION 3.05 Deposit of Redemption Price.................................42
SECTION 3.06 Notes Redeemed in Part......................................43
ARTICLE FOUR
COVENANTS.............................................................................43
SECTION 4.01 Payment of Notes............................................43
SECTION 4.02 Maintenance of Office or Agency.............................43
SECTION 4.03 Limitation on Restricted Payments...........................43
SECTION 4.04 Corporate Existence.........................................45
SECTION 4.05 Payment of Taxes and Other Claims...........................46
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SECTION 4.06 Maintenance of Properties and Insurance.....................46
SECTION 4.07 Compliance Certificate; Notice of
Default.....................................................46
SECTION 4.08 Compliance with Laws........................................47
SECTION 4.09 Reports to Holders..........................................48
SECTION 4.10 Waiver of Stay, Extension or Usury Laws.....................48
SECTION 4.11 Limitations on Transactions with
Affiliates..................................................48
SECTION 4.12 Limitation on Incurrence of
Additional Indebtedness.....................................50
SECTION 4.13 Limitation on Dividend and Other
Payment Restrictions Affecting Restricted
Subsidiaries................................................50
SECTION 4.14 Change of Control...........................................51
SECTION 4.15 Limitation on Asset Sales...................................53
SECTION 4.16 Prohibition on Incurrence of Senior
Subordinated Debt...........................................57
SECTION 4.17 Limitation on Preferred Stock of Restricted
Subsidiaries................................................57
SECTION 4.18 Limitation on Liens.........................................57
SECTION 4.19 Limitation of Guarantees by
Restricted Subsidiaries.....................................58
SECTION 4.20 Conduct of Business.........................................59
ARTICLE FIVE
SUCCESSOR CORPORATION.................................................................59
SECTION 5.01 Merger, Consolidation and Sale of
Assets......................................................59
SECTION 5.02 Successor Corporation Substituted...........................61
ARTICLE SIX
DEFAULT AND REMEDIES..................................................................61
SECTION 6.01 Events of Default...........................................61
SECTION 6.02 Acceleration................................................63
SECTION 6.03 Other Remedies..............................................64
SECTION 6.04 Waiver of Past Defaults.....................................64
SECTION 6.05 Control by Majority.........................................64
SECTION 6.06 Limitation on Suits.........................................65
SECTION 6.07 Rights of Holders To Receive Payment........................65
SECTION 6.08 Collection Suit by Trustee..................................65
SECTION 6.09 Trustee May File Proofs of Claim............................66
SECTION 6.10 Priorities..................................................66
SECTION 6.11 Undertaking for Costs.......................................67
ARTICLE SEVEN
TRUSTEE...............................................................................67
SECTION 7.01 Duties of Trustee...........................................67
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SECTION 7.02 Rights of Trustee...........................................68
SECTION 7.03 Individual Rights of Trustee................................70
SECTION 7.04 Trustee's Disclaimer........................................70
SECTION 7.05 Notice of Default...........................................70
SECTION 7.06 Reports by Trustee to Holders...............................71
SECTION 7.07 Compensation and Indemnity..................................71
SECTION 7.08 Replacement of Trustee......................................72
SECTION 7.09 Successor Trustee by Merger, Etc............................73
SECTION 7.10 Eligibility; Disqualification...............................73
SECTION 7.11 Preferential Collection of Claims Against
the Company.................................................74
SECTION 7.12 Trustee's Application for Instructions
from the Company............................................74
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE....................................................74
SECTION 8.01 Termination of the Company's Obligations....................74
SECTION 8.02 Acknowledgment of Discharge by Trustee......................77
SECTION 8.03 Application of Trust Money..................................77
SECTION 8.04 Repayment to the Company....................................77
SECTION 8.05 Reinstatement...............................................78
SECTION 8.06 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions....................................78
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS...................................................78
SECTION 9.01 Without Consent of Holders..................................78
SECTION 9.02 With Consent of Holders.....................................79
SECTION 9.03 Compliance with TIA.........................................80
SECTION 9.04 Revocation and Effect of Consents...........................80
SECTION 9.05 Notation on or Exchange of Notes............................81
SECTION 9.06 Trustee to Sign Amendments, Etc.............................81
ARTICLE TEN
SUBORDINATION OF NOTES................................................................82
SECTION 10.01 Notes Subordinated to Senior Debt...........................82
SECTION 10.02 Suspension of Payment When Senior Debt
Is in Default...............................................82
SECTION 10.03 Notes Subordinated to Prior Payment
of All Senior Debt on Dissolution,
Liquidation or Reorganization of
Company.....................................................84
SECTION 10.04 Holders To Be Subrogated to Rights
of Holders of Senior Debt...................................86
SECTION 10.05 Obligations of the Company Unconditional....................87
SECTION 10.06 Trustee Entitled To Assume Payments
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Not Prohibited in Absence of Notice.........................88
SECTION 10.07 Application by Trustee of Assets
Deposited with It...........................................88
SECTION 10.08 No Waiver of Subordination Provisions.......................89
SECTION 10.09 Holders Authorize Trustee To
Effectuate Subordination of Notes...........................89
SECTION 10.10 Rights of Trustee To Hold Senior Debt.......................90
SECTION 10.11 No Suspension of Remedies...................................90
SECTION 10.12 No Fiduciary Duty of Trustee to Holder
of Senior Debt..............................................90
ARTICLE ELEVEN
GUARANTEE OF NOTES....................................................................91
SECTION 11.01 Unconditional Guarantee.....................................91
SECTION 11.02 Limitations on Guarantees...................................92
SECTION 11.0 Execution and Delivery of Guarantee.........................92
SECTION 11.04 Release of a Guarantor......................................93
SECTION 11.05 Waiver of Subrogation.......................................94
SECTION 11.06 Immediate Payment...........................................95
SECTION 11.07 No Set-Off..................................................95
SECTION 11.08 Obligations Absolute........................................95
SECTION 11.09 Obligations Continuing......................................95
SECTION 11.10 Obligations Not Reduced.....................................95
SECTION 11.11 Obligations Reinstated......................................96
SECTION 11.12 Obligations Not Affected....................................96
SECTION 11.13 Waiver......................................................97
SECTION 11.14 No Obligation To Take Action Against
the Company............................................98
SECTION 11.15 Dealing with the Company and Others.........................98
SECTION 11.16 Default and Enforcement.....................................98
SECTION 11.17 Amendment, Etc..............................................98
SECTION 11.18 Acknowledgment..............................................99
SECTION 11.19 Costs and Expenses..........................................99
SECTION 11.20 No Merger or Waiver; Cumulative
Remedies....................................................99
SECTION 11.21 Survival of Obligations.....................................99
SECTION 11.22 Guarantee in Addition to Other
Obligations.................................................99
SECTION 11.23 Severability...............................................100
SECTION 11.24 Successors and Assigns.....................................100
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE...........................................................100
SECTION 12.01 Guarantee Obligations Subordinated to
Guarantor Senior Debt......................................100
SECTION 12.02 Suspension of Guarantee Obligations
When Guarantor Senior Debt Is
In Default.................................................100
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SECTION 12.03 Guarantee Obligations Subordinated
to Prior Payment of All Guarantor
Senior Debt on Dissolution, Liquidation
or Reorganization of Such
Subsidiary Guarantor.......................................102
SECTION 12.04 Holders of Guarantee Obligations To Be
Subrogated to Rights of Holders of
Guarantor Senior Debt......................................104
SECTION 12.06 Trustee Entitled To Assume Payments Not
Prohibited in Absence of Notice............................106
SECTION 12.07 Application by Trustee of Assets
Deposited with It..........................................106
SECTION 12.08 No Waiver of Subordination Provisions......................107
SECTION 12.09 Holders Authorize Trustee To Effectuate
Subordination of Guarantee Obligations.....................107
SECTION 12.10 Right of Trustee To Hold Guarantor
Senior Indebtedness........................................108
SECTION 12.11 No Suspension of Remedies..................................108
SECTION 12.12 No Fiduciary Duty of Trustee to
Holders of Guarantor Senior Debt...........................108
ARTICLE THIRTEEN
MISCELLANEOUS........................................................................109
SECTION 13.01 TIA Controls...............................................109
SECTION 13.02 Notices....................................................109
SECTION 13.03 Communications by Holders with Other
Holders....................................................110
SECTION 13.04 Certificate and Opinion as to
Conditions Precedent.......................................110
SECTION 13.05 Statements Required in Certificate or
Opinion....................................................110
SECTION 13.06 Rules by Trustee, Paying Agent,
Registrar..................................................111
SECTION 13.07 Legal Holidays.............................................111
SECTION 13.08 Governing Law..............................................111
SECTION 13.09 No Adverse Interpretation of Other
Agreements.................................................111
SECTION 13.10 No Recourse Against Others.................................112
SECTION 13.11 Successors.................................................112
SECTION 13.12 Duplicate Originals........................................112
SECTION 13.13 Severability...............................................112
SECTION 13.14 Independence of Covenants..................................112
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SIGNATURES.............................................................................1
Exhibit A-1 - Form of Initial Note
Exhibit A-2 - Form of Exchange Note
Exhibit B - Form of Legend for Global Notes
Exhibit C - Form of Certificate To Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection
with Transfers Pursuant to Regulation S
Exhibit E - Form of Guarantee
Note: This Table of Contents shall not, for any purpose, be
deemed to be part of this Indenture.
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INDENTURE, dated as of September 30, 1997, among HUNTSMAN
PACKAGING CORPORATION, a Utah corporation (the "Company"), each of the
Guarantors named herein, as guarantors, and The Bank of New York as trustee
(the "Trustee").
The Company has duly authorized the creation of an issue of
9 1/8% Series A Senior Subordinated Notes due 2007 (the "Initial Notes") and an
issue of 9 1/8% Series B Senior Subordinated Notes due 2007 (the "Exchange
Notes", and together with the Initial Notes, the "Notes"). All things necessary
to make the Notes, when duly issued and executed by the Company and
authenticated and delivered hereunder, the valid and binding obligations of the
Company and to make this Indenture a valid and binding agreement of the
Company, have been done.
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Company's Notes:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Acceleration Notice" has the meaning provided in Section
6.02.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"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.
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"Affiliate Transaction" has the meaning provided in
Section 4.11.
"Agent" means any Registrar, Paying Agent or Co-
registrar.
"Asset Acquisition" means (a) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or of any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or of any Restricted Subsidiary of the Company, or (b) the acquisition
by the Company or any Restricted Subsidiary of the Company of the assets of any
Person (other than a Restricted Subsidiary of the Company) which constitute all
or substantially all of the assets of such Person or comprises any division or
line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of
the Company of (a) any Capital Stock of any Restricted Subsidiary of the
Company or (b) any other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;
provided, however, that Asset Sales shall not include (i) a transaction or
series of related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than $5 million, (ii)
sales of accounts receivable and related assets (including contract rights) of
the type specified in the definition of "Qualified Securitization Transaction"
to a Securitization Entity for the fair market value thereof, (iii) sales or
grants of licenses to use the Company's or any Restricted Subsidiary's patents,
trade secrets, know-how and technology to the extent that such license does not
prohibit the licensor from using the patent, trade secret, know-how or
technology licensed in North America or require the licensor to pay any fees
for any such use, (iv) the sale, lease, conveyance, disposition or other
transfer (A) of all or substantially all of the assets of the Company or a
Restricted Subsidiary of the Company as permitted under Section 5.01, (B) of
any Capital Stock or other ownership interest in or assets or property of an
Unrestricted Subsidiary or a Person which is not a Subsidiary, (C) pursuant to
any foreclosure of assets or other remedy provided by applicable law to a
creditor of the Company or any Subsidiary of the Company with a Lien on such
assets, which Lien is permitted under the Indenture; provided that such
foreclosure or other remedy is
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conducted in a commercially reasonable manner or in accordance with any
bankruptcy law, (D) involving only Cash Equivalents or inventory in the
ordinary course of business or obsolete equipment in the ordinary course of
business consistent with past practices of the Company or (E) including only
the lease or sublease of any real or personal property in the ordinary course
of business, (v) the consummation of any transaction in accordance with the
terms of Section 4.03 and (vi) Permitted Investments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is
a corporation, any and all shares, interests, participations or other
equivalents (however designated and whether or not voting) of corporate stock,
including each class of Common Stock and Preferred Stock of such Person and
(ii) with respect to any Person that is not a corporation, any and all
partnership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) a marketable obligation,
maturing within two years after issuance thereof, issued or guaranteed by the
United States of America or an instrumentality or agency thereof, (ii) 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
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
$100,000,000 and whose long-term unsecured debt has a rating of "A" or better
by S&P or A2 or better by Moody's or the equivalent
-3-
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), (iii) open market
commercial paper, maturing within 270 days after issuance thereof, which has a
rating of A1 or better by S&P or P1 or better by Moody's, or the equivalent
rating by any other nationally recognized rating agency, (iv) repurchase
agreements and reverse repurchase agreements with a term not in excess of one
year with any financial institution which has been elected a primary government
securities dealer by the Federal Reserve Board or whose securities are rated
AA- or better by S&P or Aa3 or better by Moody's or the equivalent rating by
any other nationally recognized rating agency relating to marketable direct
obligations issued or unconditionality 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, (v) "Money Market" preferred stock
maturing within six months after issuance thereof or municipal bonds issued by
a corporation organized under the laws of any state of the United States, which
has a rating of "A" or better by S&P or Moody's or the equivalent rating by any
other nationally recognized rating agency and (vi) tax exempt floating rate
option tender bonds backed by letters of credit issued by a national or state
bank whose long-term unsecured debt has a rating of AA or better by S&P or Aa2
or better by Moody's or the equivalent rating by any other nationally
recognized rating agency.
"Change of Control" means (i) prior to the initial public
equity offering of the Company, the failure by Xxx X. Xxxxxxxx, his spouse,
direct descendants or their spouses, an entity controlled by any of the
foregoing and/or by a trust of the type described hereafter, and/or a trust for
the benefit of any of the foregoing (the "Huntsman Group"), collectively to own
and control at least a sufficient amount of the outstanding voting capital
stock of the Company to elect at least a majority of the Board of Directors of
the Company or (ii) after the initial public equity offering of the Company,
the occurrence of the following: (x) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more
members of the Huntsman Group, is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 35% or more of the then
outstanding voting capital stock of the Company other than in a transaction
having the approval of the board of directors of the Company at least a
majority of which members are Continuing Directors; or (y)
-4-
Continuing Directors shall cease to constitute at least a majority of the board
of directors of the Company.
"Change of Control Date" has the meaning provided in
Section 4.14.
"Change of Control Offer" has the meaning provided in
Section 4.14.
"Change of Control Payment Date" has the meaning provided
in Section 4.14.
"Commission" or "SEC" means the Securities and Exchange
Commission.
"Commodity Agreements" means any commodity futures contract,
commodity option or other similar agreement or arrangement entered into by the
Company or any of its Subsidiaries designed to protect the Company or any of
its Subsidiaries against fluctuations in the price of commodities actually at
that time used in the ordinary course of business of the Company or its
Subsidiaries.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor and also includes for the purposes of any provision contained
herein and required by the TIA any other obligor on the Notes.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A) all
income taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business), (B)
Consolidated Interest Expense and (C) Consolidated Non-cash Charges less any
non-cash items increasing Consolidated Net Income for such period, all as
determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
-5-
"Consolidated Fixed Charge Coverage Ratio" means, with
respect to any Person, the ratio of Consolidated EBITDA of such Person during
the four full fiscal quarters for which financial statements have been or
should have been delivered to the Trustee under Section 4.09 (the "Four Quarter
Period") ending on or prior to the date of the transaction giving rise to the
need to calculate the Consolidated Fixed Charge Coverage Ratio (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
period of such calculation to (i) the incurrence or repayment of any
Indebtedness of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period and (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including any Consolidated EBITDA (including
any pro forma expense and cost reduction calculated on a basis consistent with
Regulation S-X under the Securities Act as in effect on the Issue Date)
(provided that such Consolidated EBITDA shall be included only to the extent
includible pursuant to the definition of "Consolidated Net Income")
attributable to the assets which are the subject of the Asset Acquisition or
Asset Sale during the Four Quarter Period) occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a Person other than the Company or a Restricted Subsidiary, the
preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the
-6-
denominator (but not the numerator) of this "Consolidated Fixed Charge Coverage
Ratio," (1) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Transaction Date and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness in effect on the Transaction Date;
(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 resulting after
giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any
Person for any period, the sum, without duplication, of (i) Consolidated
Interest Expense, plus (ii) the product of (x) the amount of all dividend
payments on any series of Preferred Stock of such Person and its Restricted
Subsidiaries (other than dividends paid in Qualified Capital Stock and other
than dividends paid to such Person or to a Restricted 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.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication: (i) the aggregate of
the interest expense of such Person and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, including
without limitation, (a) any amortization of debt discount and amortization or
write-off of deferred financing costs, (b) the net costs under Interest Swap
Obligations, (c) all capitalized interest and (d) the interest portion of any
deferred payment obligation; and (ii) the interest component of Capitalized
Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such
Person and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded therefrom (a)
after-tax gains from
-7-
Asset Sales or abandonments or reserves relating thereto, (b) after-tax items
classified as extraordinary or nonrecurring gains, (c) the net income of any
Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of the
referent Person, (d) the net income (but not loss) of any Restricted Subsidiary
of the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is
restricted by a contract, operation of law or otherwise, (e) the net income of
any Person, other than a Restricted Subsidiary of the referent Person, except
to the extent of cash dividends or distributions paid to the reference Person
or to a Wholly-Owned Restricted Subsidiary of the referent Person by such
Person, (f) any restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of Consolidated Net Income
accrued at any time following the Issue Date, (g) income or loss attributable
to discontinued operations (including, without limitation, operations disposed
of during such period whether or not such operations were classified as
discontinued), (h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets and (i) all gains or losses from the cumulative effect of
any change in accounting principles.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charges constituting an extraordinary item or loss or any such charge
which requires an accrual of or a reserve for cash charges for any future
period).
"Continuing Directors" means, as of any date, the collective
reference to (i) all members of the Board of Directors of the Company who have
held office continuously since a date no later than twelve months prior to the
Company's initial public equity offering, and (ii) all members of the Board of
Directors of the Company who assumed office after such date and whose
appointment or nomination for election by the Company's
-8-
shareholders was approved by a vote of at least 50% of the Continuing Directors
in office immediately prior to such appointment or nomination.
"Credit Agreement" means the Credit Agreement, dated as of
September 30, 1997 among the Company, the lenders party thereto in their
capacities as lenders thereunder and The Chase Manhattan Bank as agent,
together with the related documents thereto (including, without limitation, any
guarantee agreements and security documents), in each case as such Credit
Agreement and related documents may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing
(whether or not contemporaneously) or otherwise restructuring (including
increasing the amount of available borrowings thereunder (to the extent that
such increase in borrowings is permitted by Section 4.12) or adding Restricted
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"CT Film" means the CT Film Division of Huntsman Polymers
Corporation.
"CT Film Purchase" means the acquisition of substantially all
of the assets of CT Film for an aggregate consideration of not in excess of $70
million pursuant to that certain Asset Purchase Agreement dated August 27, 1997
between the Company and Huntsman Polymers Corporation as in effect on the date
hereof.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an
Event of Default.
"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 must be a clearing agency
registered under the Exchange Act.
-9-
"Designated Senior Debt" means (i) Indebtedness under or in
respect of the Credit Agreement and (ii) any other indebtedness constituting
Senior Debt which, at the time of determination, has an aggregate principal
amount of at least $25 million and is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior Debt" by the Company.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Notes and to have satisfied all the obligations under this Indenture
relating to the Notes (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same upon compliance by the
Company with the provisions of Article Eight), except (i) the rights of the
Holders of Notes to receive, from the trust fund described in Article Eight,
payment of the principal of and the interest on such Notes when such payments
are due, (ii) the Company's obligations with respect to the Notes under
Sections 2.03 through 2.07, 7.07 and 7.08 and (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Disqualified Capital Stock" means that portion of any
Capital Stock which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the final maturity date of the Notes.
"Domestic Overdraft Facility" means an overdraft line of
credit in a maximum principal amount of $5 million at any time outstanding.
"DTC" means The Depository Trust Company.
"Equity Offering" has the meaning provided in paragraph
5 of the Notes.
"Event of Default" has the meaning provided in Section
6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the Company's 9 1/8% Series B Senior
Subordinated Notes due 2007 issued in exchange for the Initial Notes pursuant
to the terms of the Registration Rights Agreement.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's length,
-10-
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.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Company organized and conducting its principal operations outside the United
States.
"Foreign Subsidiary Asset Sale" means any direct or indirect
sale, issuance, conveyance, transfer, lease, assignment or other transfer for
value by the Company or any of its Restricted Subsidiaries (including any Sale
and Leaseback Transaction) to any Person other than the Company or a Restricted
Subsidiary of the Company of the Capital Stock of any Foreign Subsidiary or any
of the property or assets of any Foreign Subsidiary.
"Funds" means the aggregate amount of U.S. Legal Tender
and/or U.S. Government Obligations deposited with the Trustee
pursuant to Article Eight.
"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, which are in effect as of the
Issue Date.
"Global Notes" means one or more IAI Global Notes,
Regulation S Global Notes and 144A Global Notes.
"Guarantee Obligations" has the meaning provided in
Section 12.02.
"Guarantees" means the guarantees of the Notes of the
Company by the Guarantors.
"Guarantor" means (i) each of the Company's present
Restricted Subsidiaries listed on the signature pages hereto and (ii) each of
the Company's Restricted Subsidiaries that in the future executes a
supplemental indenture in which such Restricted Subsidiary agrees to be bound
by the terms of this Indenture as a Guarantor; provided, however, that any
Person constituting a Guarantor as described above shall cease to constitute a
Guarantor
-11-
when its respective Guarantee is released in accordance with the
terms of this Indenture.
"Guarantor Payment Blockage Notice" has the meaning
provided in Section 12.02(b).
"Guarantor Payment Blockage Period" has the meaning
provided in Section 12.02(b).
"Guarantor Senior Debt" means with respect to any Guarantor,
(i) the principal of, premium, if any, and interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on any Indebtedness of a
Guarantor, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Guarantee of such Guarantor. Without limiting the
generality of the foregoing, "Guarantor Senior Debt" shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for
in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of, (w) all monetary obligations of every nature of a Guarantor in respect of
the Credit Agreement, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities, (x) all monetary obligations of every nature of
a Guarantor evidenced by a promissory note and which is, directly or
indirectly, pledged as security for the obligations of the Company under the
Credit Agreement, (y) all Interest Swap Obligations and (z) all obligations
under Currency Agreements, in each case whether outstanding on the Issue Date
or thereafter incurred. Notwithstanding the foregoing, "Guarantor Senior Debt"
shall not include (i) any Indebtedness of such Guarantor to a Subsidiary of
such Guarantor or any Affiliate of such Guarantor or any of such Affiliate's
Subsidiaries other than as described in clause (x), (ii) Indebtedness to, or
guaranteed on behalf of, any shareholder, director, officer or employee of such
Guarantor or any Restricted Subsidiary of such Guarantor (including, without
limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts owed to suppliers in connection with obtaining
goods, materials or services, (iv) Indebtedness represented by Disqualified
Capital Stock, (v) any liability for federal, state, local or other taxes owed
or owing by such Guarantor, (vi) Indebtedness to the extent incurred in
violation of
-12-
the Indenture provisions set forth under Section 4.12, (vii) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to such Guarantor and
(viii) any Indebtedness which is, by its express terms, subordinated in right
of payment to any other Indebtedness of such Guarantor.
"Holder" or "Noteholder" means the Person in whose name a
Note is registered on the Registrar's books.
"IAI Global Note" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold to Institutional
Accredited Investors.
"Indebtedness" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all Obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business that are not
overdue by 90 days or more are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted), (v) all Obligations
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, (vi) guarantees and other contingent
obligations in respect of Indebtedness referred to in clauses (i) through (v)
above and clause (viii) below, (vii) all Obligations of any other Person of the
type referred to in clauses (i) through (vi) which are secured by any lien on
any property or asset of such Person, the amount of such Obligation being
deemed to be the lesser of the fair market value of such property or asset or
the amount of the Obligation so secured, (viii) all Obligations under Currency
Agreements, Commodity Agreements and Interest Swap Agreements of such Person
and (ix) all Disqualified Capital Stock issued by such Person with the amount
of Indebtedness represented by such Disqualified Capital Stock being equal to
the greater of its voluntary or involuntary liquidation preference and its
maximum fixed repurchase price, but excluding accrued dividends, if any;
provided, however, notwithstanding the foregoing that, Indebtedness shall not
include advances paid by customers for services or products to be provided or
delivered in the future. 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
-13-
determined pursuant to the 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; provided,
however, that notwithstanding the foregoing, "Indebtedness" shall not include
unsecured indebtedness of the Company and/or its Restricted Subsidiaries
incurred to finance insurance premiums in a principal amount not in excess of
the insurance premiums to be paid by the Company and/or its Restricted
Subsidiaries for a three year period beginning on the date of any incurrence of
such indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does
not, and whose directors, officers and employees or Affiliates do not, have a
direct or indirect financial interest in the Company and (ii) which, in the
judgment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2) (3)
or (7) under the Securities Act.
"Initial Notes" means the Company's 9 1/8% Series A Senior
Subordinated Notes due 2007.
"Initial Purchasers" means BT Alex. Xxxxx Incorporated
and Chase Securities Inc.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"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 periodic payments made by such
other Person calculated by applying a fixed or a floating rate of interest on
the same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
"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),
-14-
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" shall exclude extensions of trade credit by the
Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. For the purposes of Section 4.03, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary and shall exclude the fair market
value of the net assets of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced
by the payment of dividends or distributions in connection with such Investment
or any other amounts received in respect of such Investment; provided that no
such payment of dividends or distributions or receipt of any such other amounts
shall reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, greater than
50% of the outstanding Common Stock of such Restricted Subsidiary, the Company
shall be deemed to have made an investment on the date of any such sale or
disposition equal to the fair market value of the Common Stock of such
Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the
Notes.
"Legal Holiday" has the meaning provided in Section
13.07.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and
any agreement to give any security interest).
"Material Subsidiary" means, at any date of determination,
any Subsidiary of the Company that, together with its Subsidiaries, (i) for the
most recent fiscal year of the
-15-
Company accounted for more than 10% of the consolidated revenues of the Company
or (ii) as of the end of such fiscal year, was the owner of more than 10% of
the consolidated assets of the Company, all as set forth on the most recently
available consolidated financial statements of the Company and its consolidated
Subsidiaries for such fiscal year prepared in conformity with GAAP.
"Maturity Date" means October 1, 2007.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Cash Proceeds" means, with respect to any Asset Sale,
the proceeds in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (other than the portion of any such deferred payment
constituting interest) received by the Company or any of its Restricted
Subsidiaries from such Asset Sale net of (a) 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, including any taxes to be paid by the Company or any of its
Subsidiaries upon the repatriation of such cash proceeds to the United States
upon consummation of a Foreign Subsidiary Asset Sale, (c) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale,
(d) the decrease in proceeds from Qualified Securitization Transactions which
results from such Asset Sale and (e) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities relied to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale.
"Net Proceeds Offer" has the meaning provided in Section
4.15.
"Net Proceeds Offer Amount" has the meaning provided in
Section 4.15.
"Net Proceeds Offer Payment Date" has the meaning
provided in Section 4.15.
"Net Proceeds Offer Trigger Date" has the meaning
provided in Section 4.15.
-16-
"Non-U.S. Person" has the meaning assigned to such term
in Regulation S.
"Non-Payment Default" has the meaning provided in Section
10.02(b).
"Notes" means, collectively, Initial Notes and the Exchange
Notes, treated as a single class of securities under this Indenture, except as
set forth herein.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Controller, or the Secretary of
such Person, or any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 13.04 and 13.05, as they relate to the making of
an Officers' Certificate, and delivered to the Trustee.
"144A Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying with the
requirements of Sections 13.04 and 13.05, as they relate to the giving of an
Opinion of Counsel, and delivered to the Trustee.
"Participant" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03,
except that, during the continuance of a Default or Event of Default and for
the purposes of Articles Three and Eight and Sections 4.14 and 4.15, the Paying
Agent shall not be the Company or any Affiliate of the Company.
"Payment Blockage Notice" has the meaning provided in
Section 10.02(b).
"Payment Blockage Period" has the meaning provided in
Section 10.02(b)
-17-
"Payment Default" has the meaning provided in Section
10.02(a).
"Permitted Indebtedness" means, without duplication, each
of the following:
(i) Indebtedness under the Notes, this Indenture and the
Guarantees;
(ii) Indebtedness incurred pursuant to the Credit Agreement
in an aggregate principal amount not exceeding $225 million at any one
time outstanding, less (i) the amount of any principal payments made
by the Company under the Credit Agreement with the Net Cash Proceeds
of any Asset Sale (which are accompanied by a corresponding permanent
commitment reduction to the extent that the amount paid could have
otherwise been reborrowed under the Credit Agreement) pursuant to
clause (iii)(A) of the first sentence of Section 4.15 and (ii) if the
CT Film Purchase is not consummated on or before December 31, 1997, a
permanent reduction of the facilities under the Credit Agreement in an
aggregate principal amount equal to $70 million.
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of
any scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions thereon;
(iv) Commodity Agreements and Interest Swap Obligations of
the Company covering Indebtedness of the Company or any of its
Restricted Subsidiaries (or Indebtedness which the Company or such
Restricted Subsidiary intends to incur) and Interest Swap Obligations
of any Restricted Subsidiary of the Company covering Indebtedness of
such Restricted Subsidiary (or Indebtedness which such Restricted
Subsidiary intends to incur); provided, however, that such Interest
Swap Obligations are entered into to protect the Company and its
Restricted Subsidiaries from fluctuations in interest rates on
Indebtedness permitted under this Indenture to the extent the notional
principal amount of such Interest Swap Obligation, when incurred, does
not exceed the principal amount of the Indebtedness incurred or
intended to be incurred to which such Interest Swap Obligation
relates;
(v) Indebtedness under Currency Agreements; provided that in
the case of Currency Agreements which
-18-
relate to Indebtedness, such Currency Agreements do not increase the
Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency
exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(vi) Indebtedness of a Restricted Subsidiary of the Company
to the Company or to a Wholly-Owned Restricted Subsidiary of the
Company for so long as such Indebtedness is held by the Company or a
Wholly-Owned Restricted Subsidiary of the Company, in each case
subject to no Lien held by a Person other than the Company or a
Restricted Subsidiary of the Company; provided that if as of any date
any Person other than the Company, or a Wholly-Owned Restricted
Subsidiary of the Company owns or holds any such Indebtedness or holds
a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by
the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Restricted Subsidiary
of the Company for so long as such Indebtedness is held by a
Restricted Subsidiary of the Company, in each case subject to no Lien;
provided that (a) any Indebtedness of the Company to any Restricted
Subsidiary of the Company is unsecured and subordinated, pursuant to a
written agreement, to the Company's obligations under this Indenture
and the Notes and (b) if as of any date any Person other than a
Restricted Subsidiary of the Company owns or holds any such
Indebtedness or any Person holds a Lien in respect of such
Indebtedness (other than pledges securing the Credit Agreement) such
date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the Company;
(viii) Indebtedness 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 two
Business Days of incurrence;
(ix) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, in order to
provide
-19-
security for workers' compensation claims, payment obligations in
connection with self-insurance or similar requirements in the ordinary
course of business;
(x) Refinancing Indebtedness;
(xi) Indebtedness arising from agreements of the Company or a
Subsidiary providing for indemnification, adjustment of purchase price
or similar obligations, in each case, incurred in connection with the
disposition of any business, assets or Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of
financing such acquisition; provided that the maximum aggregate
liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds actually received by the Company and the Subsidiary
in connection with such disposition;
(xii) Obligations in respect of performance bonds and
completion, guarantee, surety and similar bonds provided by the
Company or any Restricted Subsidiary in the ordinary course of
business;
(xiii) Guarantees by the Company or a Subsidiary of
Indebtedness incurred by the Company or a Subsidiary so long as the
incurrence of such Indebtedness by the Company or any such Subsidiary
is otherwise permitted by the terms of this Indenture;
(xiv) Indebtedness of the Company or any Restricted
Subsidiary incurred in the ordinary course of business not to exceed
$10 million at any time outstanding (A) representing Capitalized Lease
Obligations or (B) constituting purchase money Indebtedness incurred
to finance property or assets of the Company or any Restricted
Subsidiary of the Company acquired in the ordinary course of business;
provided, however, that such purchase money Indebtedness shall not
exceed the cost of such property or assets and shall not be secured by
any property or assets of the Company or any Restricted Subsidiary of
the Company other than the property and assets so acquired;
(xv) Indebtedness of Foreign Subsidiaries that are Restricted
Subsidiaries to the extent that the aggregate outstanding amount of
Indebtedness incurred by such Foreign Subsidiaries under this clause
(xv) does not exceed at any one time an amount equal to the sum of (A)
-20-
80% of the consolidated book value of the accounts receivable of all
Foreign Subsidiaries and (B) 60% of the consolidated book value of the
inventory of all Foreign Subsidiaries;
(xvi) The incurrence by a Securitization Entity of
Indebtedness in a Qualified Securitization Transaction that is not
recourse to the Company or any Subsidiary of the Company (except for
Standard Securitization
Undertakings);
(xvii) Indebtedness under any Domestic Overdraft Facility;
and
(xviii) Additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to exceed
$15 million at any one time outstanding.
"Permitted Investments" means (i) Investments by the Company
or any Restricted Subsidiary of the Company in any Person that is or will
become immediately after such Investment a Wholly- Owned Restricted Subsidiary
of the Company or that will merge or consolidate into the Company or a
Wholly-Owned Restricted Subsidiary of the Company, (ii) Investments in the
Company by any Restricted Subsidiary of the Company; provided that any
Indebtedness evidencing such Investment is unsecured and subordinated (other
than pursuant to intercompany notes pledged under the Credit Agreement),
pursuant to a written agreement, to the Company's Obligations under the Notes
and this Indenture; (iii) Investments in cash and Cash Equivalents; (iv) loans
and advances to employees and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for travel, relocation and
similar expenses for bona fide business purposes not in excess of $3 million at
any one time outstanding; (v) Commodity Agreements, Currency Agreements and
Interest Swap Obligations entered into in the ordinary course of the Company's
or its Restricted Subsidiaries' businesses and otherwise in compliance with
this Indenture; (vi) Investments in Unrestricted Subsidiaries or joint ventures
not to exceed $20 million, plus (A) the aggregate net after-tax amount returned
to the Company or any Restricted Subsidiary in cash on or with respect to any
Investments made in Unrestricted Subsidiaries and joint ventures whether
through interest payments, principal payments, dividends or other distributions
or payments (including such dividends, distributions or payments made
concurrently with such Investment), (B) the net after-tax cash proceeds
received by the Company or any Restricted Subsidiary from the disposition of
all or any portion of such Investments (other than to the Company or a
Subsidiary of the Company), (C) upon redesignation of an Unrestricted
Subsidiary as
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a Restricted Subsidiary, the fair market value of such Subsidiary and (D) the
net cash proceeds received by the Company from the issuance of Specified
Venture Capital Stock; (vii) 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 Restricted Subsidiaries; (viii)
Investments made by the Company or its Restricted Subsidiaries as a result of
consideration received in connection with an asset sale made in compliance with
Section 4.15; (ix) Investments existing on the Issue Date; (x) any Investment
by the Company or a Wholly-Owned Subsidiary of the Company in a Securitization
Entity or any Investment by a Securitization Entity in any other Person in
connection with a Qualified Securitization Transaction; provided that any
Investment in a Securitization Entity is in the form of a purchase money note
or an equity interest; (xi) Investments constituting guarantees by the Company
or a Subsidiary of the Company of Indebtedness incurred by the Company or such
Subsidiary so long as the incurrence of such Indebtedness by the Company or any
such Subsidiary is otherwise permitted by the terms of this Indenture; and
(xii) additional Investments in an aggregate amount not exceeding $2 million at
any one time outstanding.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental agency
or political subdivision thereof.
"Physical Notes" shall have the meaning provided in
Section 2.01.
"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.
"principal" of any Indebtedness (including the Notes) means
the principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend set forth on the
Initial Notes in the form set forth on Exhibit A-1.
"pro forma" means, unless otherwise provided herein, with
respect to any calculation made or required to be made pursuant to the terms of
this Indenture, a calculation in accordance with Article 11 of Regulation S-X
promulgated under the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is
not Disqualified Capital Stock.
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"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Qualified Securitization Transaction" means any transaction
or series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer pursuant to customary terms to (a) a
Securitization Entity (in the case of a transfer by the Company or any of its
Subsidiaries) and (b) any other Person (in the case of transfer by a
Securitization Entity), or may grant a security interest in any accounts
receivable (whether now existing or arising or acquired in the future) of the
Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and contract rights and all guarantees or other obligations in
respect of such accounts receivable, proceeds of such accounts receivable and
other assets (including contract rights) which are customarily transferred or
in respect of which security interests are customarily granted in connection
with asset securitization transactions involving accounts receivable.
"Record Date" has the meaning provided in Section 2.05.
"Redemption Date" means, with respect to any Notes, the
Maturity Date of such Note or the earlier date on which such Note is to be
redeemed by the Company pursuant to paragraph 5 of the Notes.
"Redemption Price" has the meaning provided in Section
3.03.
"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 any Refinancing by the
Company or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.12 (other than pursuant to clause (ii), (iv), (v),
(vi), (vii), (viii), (ix), (xi), (xii), (xiii), (xiv), (xv) or (xvi) of the
definition of Permitted Indebtedness), in each case that does not (1) result in
an increase in the aggregate principal amount of Indebtedness of such Person as
of the date of such proposed Refinancing (plus the amount of any premium
required to be paid under the terms of the instrument governing such
Indebtedness and plus the amount of reasonable expenses incurred by the Company
in connection with such
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Refinancing) or (2) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that (x) if such
Indebtedness being Refinanced is Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company, (y) if
such Indebtedness being Refinanced is subordinate or junior to the Notes, then
such Refinancing Indebtedness shall be subordinate to the Notes at least to the
same extent and in the same manner as the Indebtedness being Refinanced and (z)
if such Indebtedness being Refinanced is subordinate or junior to the Guarantee
of such Guarantor, then such Refinancing Indebtedness shall be subordinate to
the Guarantee of such Guarantor at least to the same extent and in the same
manner as the Indebtedness being Refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of September 19, 1997 among the Company, the Guarantors and
the Initial Purchasers.
"Regulation S" means Regulation S under the Securities
Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Replacement Assets" has the meaning provided in Section
4.15.
"Representative" means the indenture trustee or other
trustee, agent or representative in respect of any Designated Senior Debt;
provided that if, and for so long as, any Designated Senior Debt lacks such a
representative, then the Representative for such Designated Senior Debt shall
at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Debt in respect of any Designated Senior Debt.
"Restricted Note" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
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"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill Companies.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such Person or to any other Person from whom
funds have been or are to be advanced by such Person on the security of such
property.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Securitization Entity" means a Wholly-Owned Subsidiary of
the Company (or another Person in which the Company or any Subsidiary of the
Company makes an Investment and to which the Company or any Subsidiary of the
Company transfers accounts receivable or equipment and related assets) which
engages in no activities other than in connection with the financing of
accounts receivable or equipment and which is designated by the Board of
Directors of the Company (as provided below) as a Securitization Entity (a) no
portion of the Indebtedness or any other Obligations (contingent or otherwise)
of which (i) is guaranteed by the Company or any Subsidiary of the Company
(excluding guarantees of Obligations (other than the principal of, and interest
on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is
recourse to or obligates the Company or any Subsidiary of the Company in any
way other than pursuant to Standard Securitization Undertakings or (iii)
subjects any property or asset of the Company or any Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings, (b) with which
neither the Company nor any Subsidiary of the Company has any material
contract, agreement, arrangement or understanding other than on terms no less
favorable to the Company or such Subsidiary than those that might be obtained
at the time from Persons that are not Affiliates of the Company, other than
fees payable in the ordinary course of business in connection with servicing
receivables of such entity and (c) to which neither the Company nor any
Subsidiary of the Company has any obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve certain levels of
operating results. Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing with the Trustee a
certified
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copy of the Board Resolution giving effect to such designation and an officers'
certificate certifying that such designation complied with the foregoing
conditions.
"Senior Debt" means the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on any Indebtedness of the Company, whether outstanding on the
Issue Date or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes. Without
limiting the generality of the foregoing, "Senior Debt" shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for
in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of, (x) all monetary obligations of every nature of the Company under the
Credit Agreement, including, without limitation, obligations to pay principal
and interest, reimbursement obligations under letters of credit, fees, expenses
and indemnities, (y) all Interest Swap Obligations and (z) all Obligations
under Currency Agreements and Commodity Agreements, in each case whether
outstanding on the Issue Date or thereafter incurred. Notwithstanding the
foregoing, "Senior Debt" shall not include (i) any Indebtedness of the Company
to a Restricted Subsidiary of the Company or any Affiliate of the Company or
any of such Affiliate's Subsidiaries, (ii) Indebtedness to, or guaranteed on
behalf of, any shareholder, director, officer or employee of the Company or any
Subsidiary of the Company (including, without limitation, amounts owed for
compensation), (iii) Indebtedness to trade creditors and other amounts owed to
suppliers in connection with obtaining goods, materials or services, (iv)
Indebtedness represented by Disqualified Capital Stock, (v) any liability for
federal, state, local or other taxes owed or owing by the Company, (vi)
Indebtedness to the extent incurred in violation of the Indenture provisions
set forth under Section 4.12, (vii) Indebtedness which, when incurred and
without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx
Xxxxxx Code, is without recourse to the Company and (viii) any Indebtedness
which is, by its express terms, subordinated in right of payment to any other
Indebtedness of the Company.
"Specified Venture Capital Stock" means Qualified Capital
Stock of the Company issued to a Person (or Affiliates of such Person) who is
not an Affiliate of the Company and the proceeds from the issuance of which are
applied within 180 days after the
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issuance thereof to an Investment in an Unrestricted Subsidiary or
joint venture.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts
receivable securitization transaction.
"Subsidiary", with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person or (ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly,
owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date hereof, except
as otherwise provided in Section 9.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters or,
in the case of a successor trustee, an officer assigned to the department,
division or group performing the corporate trust work of such successor.
"Unrestricted Notes" means one or more Notes that do not and
are not required to bear the Private Placement Legend in the form set forth in
Exhibit A-1, including, without limitation, the Exchange Notes.
"Unrestricted Subsidiary" of any Person means (i) any
Subsidiary of such Person that at the time of determination shall be or
continue to be designated an Unrestricted Subsidiary in the manner provided
below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the Company
or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided that (x) the Company certifies to the
Trustee that such designation complies with Section 4.03 and (y) each
Subsidiary to be so designated and each of its Subsidiaries has not at the time
of designation, and does
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not thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to
which the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if (x) immediately after giving
effect to such designation, the Company is able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 and (y) immediately before and immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an officers' certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"U.S. Legal Tender" means such coin or currency of the
United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
"Weighted Average Life to Maturity" means, when applied to
any Indebtedness at any date, the number of years obtained by dividing (a) the
then outstanding aggregate principal amount of such Indebtedness into (b) the
sum of the total of the products obtained by multiplying (i) the amount of each
then remaining installment, sinking fund, serial maturity or other required
payment of principal, including payment at final maturity, in respect thereof,
by (ii) the number of years (calculated to the nearest one-twelfth) which will
elapse between such date and the making of such payment.
"Wholly-Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person that is a Wholly-Owned Subsidiary of such
Person.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person of which all the outstanding voting securities (other than in
the case of a foreign Subsidiary, directors' qualifying shares or an immaterial
amount of shares required to be owned by other Persons pursuant to applicable
law) are owned by such Person or any Wholly-Owned Subsidiary of such Person.
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SECTION 1.02 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA,
that portion of such provision that is required to be incorporated 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:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a
Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company
or any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by the TIA by reference to another statute or defined by
SEC rule and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP as in effect on
the Issue Date;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words
in the plural include the singular;
(5) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(6) all references to Articles, Sections and Exhibits shall
mean, unless they clearly indicate otherwise, the Article and Sections
hereof and the Exhibits attached hereto,
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the terms of which Exhibits are hereby incorporated into this
Indenture.
ARTICLE TWO
THE NOTES
SECTION 2.01 Form and Dating.
The Initial Notes and the Exchange Notes and the Trustee's
certificate of authentication relating thereto shall be substantially in the
form of Exhibits A-1 and A-2 hereto, respectively. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Notes and any notation, legend
or endorsement thereon. Each Note shall be dated the date of issuance and shall
show the date of its authentication. Each Note shall have an executed Guarantee
from each of the Guarantors endorsed thereon substantially in the form of
Exhibit E hereto.
The terms and provisions contained in the Notes annexed
hereto as Exhibits A-1 and A-2, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A, Notes
offered and sold to institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and Notes offered and sold
in reliance on Regulation S of the Securities Act shall be issued initially in
the form of one or more Global Notes, substantially in the form set forth in
Exhibit A-1 in the case of the Initial Notes and Exhibit A-2 in the case of the
Exchange Notes, deposited with the Trustee, as custodian for the Depository,
duly executed by the Company (and having an executed Guarantee from each of the
Guarantors endorsed thereon) and authenticated by the Trustee as hereinafter
provided and shall bear the legend set forth in Exhibit B. The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Notes issued in exchange for interests in a Global Note
pursuant to Section 2.16 may be issued in the form of permanent certificated
Notes in registered form in substantially the form set forth in Exhibits A-1 or
A-2, as applicable (the "Physical Notes").
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SECTION 2.02 Execution and Authentication;
Aggregate Principal Amount.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign, and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company, and one Officer
shall sign the Guarantees for the Guarantors, by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a
Note or a Guarantee, as the case may be, was an Officer or Assistant Secretary
at the time of such execution but no longer holds that office or position at
the time the Trustee authenticates the Note, the Note shall nevertheless be
valid.
A Note shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Note. The
signature of such representative of the Trustee shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue in an aggregate principal amount of $125 million and (ii) Exchange Notes
for issue only in a registered exchange offer, pursuant to the Registration
Rights Agreement, for Initial Notes for a like principal amount of Initial
Notes exchanged pursuant thereto, in each case, upon a written order of the
Company in the form of an Officers' Certificate of the Company. Each such
written order shall specify the amount of Notes to be authenticated and the
date on which the Notes are to be authenticated and whether (subject to Section
2.01) the Notes are to be issued as Physical Notes or Global Notes and such
other information as the Trustee may reasonably request. The aggregate
principal amount of Notes outstanding at any time may not exceed $125 million,
except as provided in Sections 2.07 and 2.08.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote or consent) as one class and no series of Notes will have
the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same
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rights as an Agent to deal with the Company and Affiliates of the
Company.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall
be located in the Borough of Manhattan in the City of New York, State of New
York, where (a) Notes may be presented or surrendered for registration of
transfer or for exchange ("Registrar"), (b) Notes may be presented or
surrendered for payment ("Paying Agent") and (c) notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional paying agent. The
Company may change the Paying Agent or Registrar without notice to any Holder.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall incorporate
the provisions of the TIA and implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee, in advance, of the
name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a successor has
been appointed. Any of the Registrar, the Paying Agent or any other Agent may
resign upon 30 days' notice to the Company.
SECTION 2.04 Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, premium, if any, or interest on, the Notes
(whether such assets have been distributed to it by the Company or any other
obligor on the Notes), and shall notify the Trustee of any default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company, upon written request to a Paying Agent, at any time
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may require a Paying Agent to distribute all assets held by it to the Trustee
and account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee
and to account for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Company to the Paying Agent
and the completion of any accounting required to be made hereunder, the Paying
Agent shall have no further liability for such assets.
SECTION 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee five (5)
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing a list as of the applicable Record Date and in
such form as the Trustee may reasonably require of the names and addresses of
the Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06 Transfer and Exchange.
Subject to Sections 2.15 and 2.16, when Notes are presented
to the Registrar or a co-Registrar with a request to register the transfer of
such Notes or to exchange such Notes for an equal principal amount of Notes of
other authorized denominations, the Registrar or co-Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Notes presented or surrendered
for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's written request. No service charge shall be made
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith. The Registrar or co-Registrar shall not
be required to register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption pursuant to Section 3.03 and paragraph 5 of the Notes and
ending at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of
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any Note being redeemed in part and (iii) during a Change in Control Offer or a
Net Proceeds Offer if such Note is tendered pursuant to such Change in Control
Offer or Net Proceeds Offer, as applicable, and not withdrawn.
Any Holder of a beneficial interest in a Global Note shall,
by acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Notes may be effected only through a book entry system
maintained by the Holder of such Global Note (or its agent), and that ownership
of a beneficial interest in the Note shall be required to be reflected in a
book entry system.
SECTION 2.07 Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note and each of the Guarantors shall execute a Guarantee thereon if the
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder must provide an indemnity bond or other indemnity, sufficient in the
reasonable judgment of the Company, the Guarantors and the Trustee, to protect
the Company, the Guarantors, the Trustee or any Agent from any loss which any
of them may suffer if a Note is replaced. Each of the Company and the Trustee
may charge such Holder for its reasonable out-of-pocket expenses in replacing a
Note, including reasonable fees and expenses of counsel. Every replacement Note
shall constitute an additional obligation of the Company and every replacement
Guarantee shall constitute an additional obligation of the Guarantors.
SECTION 2.08 Outstanding Notes.
Notes outstanding at any time are all the Notes that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
Subject to Section 2.09, a Note does not cease to be outstanding because the
Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying
Agent holds U.S. Legal Tender or U.S. Government Obligations
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sufficient to pay all of the principal, premium, if any, and interest due on
the Notes payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases to
accrue.
If on any date which is no earlier than 60 days prior to a
Redemption Date, the Company has irrevocably deposited in trust with the
Trustee U.S. Legal Tender, U.S. Government Obligations or a combination thereof
in an amount sufficient to pay all of the principal, premium, if any, and
interest due on the Notes payable on such Redemption Date, together with
irrevocable instructions from the Company directing the Trustee to apply such
funds to the payment thereof on such Redemption Date pursuant to the terms of
this Indenture, then and after the date of such deposit such Notes shall be
deemed to be not outstanding for purposes of determining whether the Holders of
the required aggregate principal amount of Notes have concurred in any
direction, waiver, consent or notice which requires the consent of at least a
majority in aggregate principal amount of Notes then outstanding.
SECTION 2.09 Treasury Notes.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver, consent or
notice, Notes owned by the Company or an Affiliate shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which the Trustee actually knows are so owned shall be
so considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Notes, of the aggregate
principal amount of such Notes so repurchased or otherwise acquired.
SECTION 2.10 Temporary Notes.
Until Physical Notes are ready for delivery, the Company may
prepare and execute and the Trustee shall authenticate temporary Notes upon
receipt of a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of temporary
Notes to be authenticated and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the form of Physical
Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and
execute, and the Trustee shall authenticate upon receipt of a written order of
the Company pursuant to Section 2.02, upon surrender of Physical Notes at the
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office or agency of the Company in exchange for temporary Notes,
without charge to the Holder.
SECTION 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee,
or at the direction of the Trustee, the Registrar or the Paying Agent, and no
one else, shall cancel and, at the written direction of the Company, shall
dispose and deliver evidence of disposal of all Notes surrendered for transfer,
exchange, payment or cancellation; provided, however, that in no event shall
the Trustee be required to destroy any such Notes. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that the Company has paid or
delivered to the Trustee for cancellation. If the Company shall acquire any of
the Notes, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12 Defaulted Interest.
The Company will pay interest on overdue principal from time
to time on demand at the rate of interest then borne by the Notes. The Company
shall, to the extent lawful, pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the rate of interest then borne by the Notes. Interest on the Notes will be
computed on the basis of a 360-day year comprised of twelve 30-day months, and,
in the case of a partial month, the actual number of days elapsed.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest, plus (to the extent lawful) any
interest payable on the defaulted interest to the Persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the subsequent special record date, the Company shall mail
to each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the 30-day period set forth in Section 6.01(a) shall
be paid to Holders as of the regular record date for the Interest Payment Date
for which interest has not been paid.
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SECTION 2.13 CUSIP Numbers.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP numbers printed in the notice or on the Notes, and
that reliance may be placed only on the other identification numbers printed on
the Notes. The Company shall promptly notify the Trustee of any change in the
CUSIP number.
SECTION 2.14 Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest
Payment Date, Maturity Date, Redemption Date, Change of Control Payment Date,
and Net Proceeds Offer Payment Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Payment Date, and Net Proceeds Offer Payment Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Payment Date, and Net Proceeds Offer Payment Date, as
the case may be.
SECTION 2.15 Book-Entry Provisions for Global Notes
(a) The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit B.
Members of, or participants in, the Depository
("Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Note, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and Participants, the operation of customary
practices governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial
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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 2.16. In addition, Physical Notes shall be transferred to
all beneficial owners in exchange for their beneficial interests in Global
Notes if (i) the Depository notifies the Company that it is unwilling or unable
to continue as Depository for any Global Note and a successor Depository is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a request
from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in a 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 such Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the
Company shall execute and the Trustee shall authenticate and deliver, one or
more Physical Notes of authorized denominations in an aggregate principal
amount equal to the principal amount of the beneficial interest in the Global
Note so transferred.
(d) In connection with the transfer of a Global Note as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, the Guarantors shall execute
Guarantees on and the Trustee shall upon written instructions from the Company
authenticate and deliver, to each beneficial owner identified by the Depository
in exchange for its beneficial interest in such Global Note, 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) or (c) of this Section 2.15 shall, except as otherwise provided by Section
2.16, bear the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.16 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following additional
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provisions shall apply with respect to the registration of any
proposed transfer of 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
Restricted Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the second anniversary
of the Issue Date; provided, however, that neither the Company nor any
Affiliate of the Company has held any beneficial interest in such
note, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date 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 C hereto
and any legal opinions and certifications required thereby and (2) in
the case of a transfer to a Non-U.S. Person, the proposed transferor
has delivered to the Registrar a certificate substantially in the form
of Exhibit D hereto and any legal opinions and certificates required
thereby;
(ii) if the proposed transferee is a Participant and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the IAI Global Note or
Regulation S Global Note, as the case may be, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
the Registrar shall register the transfer and reflect on its books and
records the date and an increase in the principal amount of the IAI
Global Note or Regulation S Global Note, as the case may be, in an
amount equal to the principal amount of Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred; and
(iii) if the proposed transferor is a Participant
seeking to transfer an interest in a Global Note, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
the Registrar shall register the transfer and reflect on its books and
records (A) the date, (B) a decrease in the principal amount of the
Global Note from which such interests are to be transferred in an
amount equal to the principal amount of the Notes to be transferred
and (C) an increase in the principal amount of the IAI Global Note or
the Regulation S Global Note,
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as the case may be, in an amount equal to the principal amount
of the Notes to be transferred.
(b) Transfers to QIBS. The following provisions shall
apply with respect to the registration of any proposed transfer of
a Restricted Security to a QIB:
(i) the Registrar shall register the transfer of any
Restricted Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the second anniversary
of the Issue Date; provided, however, that neither the Company nor any
Affiliate of the Company has held any beneficial interest in such
Note, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date or (y) such transfer is being made by a
proposed transferor who has checked the box provided for on the form
of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) if the proposed transferee is a Participant and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the 144A Global Note,
upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall register the transfer and reflect on its book and
records the date and an increase in the principal amount of the 144A
Global Note in an amount equal to the principal amount of Physical
Notes to be transferred, and the Trustee shall cancel the Physical
Note so transferred; and
(iii) if the proposed transferor is a Participant
seeking to transfer an interest in the IAI Global Note or the
Regulation S Global Note, upon receipt by the Registrar of written
instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall register
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the transfer and reflect on its books and records the date and (A) a
decrease in the principal amount of the IAI Global Note or the
Regulation S Global Note, as the case may be, in an amount equal to
the principal amount of the Notes to be transferred and (B) an
increase in the principal amount of the 144A Global Note in an amount
equal to the principal amount of the Notes to be transferred.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not
be transferred as a whole except 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 or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver only Notes that
bear the Private Placement Legend unless (i) there is delivered to the Trustee
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act or (ii) such Note has been sold pursuant to an effective
registration statement under the Securities Act.
(e) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or among Participants
or beneficial owners of interests in any Global Note other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by the terms of, this Indenture, and to examine the same
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to determine substantial compliance as to form with the express
requirements hereof.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 5
of the Notes, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the aggregate principal amount of the Notes to be
redeemed. Such notice must be given at least 45 days prior to the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee), but shall
not be given more than 60 days before the Redemption Date. Any such notice may
be cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02 Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed at any time,
selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed or, if such Notes are not listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, however, that no Notes
of a principal amount of $1,000 or less shall be redeemed in part. On and after
the Redemption Date, interest shall cease to accrue on the Notes or portions
thereof called for redemption; provided, further, however, that if a partial
redemption is made with the proceeds of an Equity Offering, selection of the
Notes or portions thereof for redemption shall be made by the Trustee only on a
pro rata basis or on as nearly a pro rata basis as is practicable (subject to
DTC procedures), unless such method is otherwise prohibited.
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SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail or cause to be mailed a notice of
redemption by first-class mail to each Holder whose Notes are to be redeemed at
its registered address, with a copy to the Trustee. At the Company's request,
the Trustee shall give the notice of redemption in the Company's name and at
the Company's expense. Each notice for redemption shall identify the Notes to
be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued
interest, if any, to be paid (the "Redemption Price");
(3) the paragraph and subparagraph of the Notes
pursuant to which the Notes are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(6) that, unless the Company defaults in making the
redemption payment, interest, if any, on Notes or portions
thereof called for redemption shall cease to accrue on and
after the Redemption Date, and the only remaining right of
the Holders of such Notes is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the
Notes redeemed;
(7) that, 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 cancellation of
such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued
in the name of the Holder;
(8) that, if less than all the Notes are to be
redeemed, the identification of the particular Notes (or
portion thereof) to be redeemed, as well as the aggregate
principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such
partial redemption; and
(9) the CUSIP number, if any, relating to such Notes.
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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 rule, laws and regulations are applicable in connection with
the purchase of Notes.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03, Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the Redemption
Price, but installments of interest, the maturity of which is on or prior to
the Redemption Date, shall be payable to Holders of record at the close of
business on the relevant record dates referred to in the Notes. Interest shall
accrue on or after the Redemption Date and shall be payable only if the Company
defaults in payment of the Redemption Price.
SECTION 3.05 Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price
of all Notes to be redeemed on that date. The Paying Agent shall promptly
return to the Company any U.S. Legal Tender so deposited that is not required
for that purpose, except with respect to monies owed as obligations to the
Trustee pursuant to Article Seven.
Unless the Company fails to comply with the preceding
paragraph and defaults in the payment of such Redemption Price, interest on the
Notes to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Notes are presented for payment.
SECTION 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Note or Notes equal in
principal amount to the unredeemed portion of the Note surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Notes.
The Company shall pay the interest on the Notes on the dates
and in the manner provided in the Notes. An installment of principal of or
interest on the Notes shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date U.S. Legal Tender designated for and
sufficient to pay the installment. Interest on the Notes will be computed on
the basis of a 360-day year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States
of America from principal, premium or interest payments hereunder.
SECTION 4.02 Maintenance of Office or Agency.
The Company shall maintain the office or agency required
under Section 2.03. The Company shall give prior notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
SECTION 4.03 Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions
payable solely in Qualified Capital Stock of the Company) on or in respect of
shares of Capital Stock of the Company or any Restricted Subsidiary of the
Company to holders of such Capital Stock (other than dividends or distributions
payable to the Company or any Restricted Subsidiary of the Company), (b)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or any Restricted Subsidiary of the Company or any warrants, rights
or options to purchase or acquire shares of any class of such Capital Stock
(other than any such Capital Stock, warrants, rights or options owned by the
Company or any Restricted Subsidiary of the Company), (c) make any principal
payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or
retire for value, prior to any scheduled final maturity, scheduled repayment or
scheduled
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sinking fund payment, any Indebtedness of the Company or any Restricted
Subsidiary of the Company that is subordinate or junior in right of payment to
the Notes or the Guarantees or (d) make any Investment (other than Permitted
Investments) (each of the foregoing actions set forth in clauses (a), (b), (c)
and (d) being referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto, (i) a Default or
an Event of Default shall have occurred and be continuing, or (ii) the Company
is not able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12 or (iii) the aggregate
amount of all Restricted Payments (including such proposed Restricted Payment)
made subsequent to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as determined
reasonably and in good faith by the Board of Directors of the Company) shall
exceed the sum of: (w) $10 million plus (x) 50% of the cumulative Consolidated
Net Income (or if cumulative Consolidated Net Income shall be a loss, minus
100% of such loss) of the Company earned subsequent to the Issue Date and on or
prior to the date the Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period); plus (y) 100% of the
aggregate net cash proceeds received by the Company from any Person (other than
a Subsidiary of the Company) from the issuance and sale subsequent to the Issue
Date and on or prior to the Reference Date of Qualified Capital Stock of the
Company; plus (z) without duplication of any amounts included in clause
(iii)(y) above, 100% of the aggregate net cash proceeds of any equity
contribution received by the Company from a holder of the Company's Capital
Stock (excluding, in the case of clauses (iii)(y) and (z), any net cash
proceeds from the issuance and sale of Specified Venture Capital Stock).
Notwithstanding the foregoing, the provisions set forth in
the immediately preceding paragraph shall not prohibit: (1) the payment of any
dividend within 60 days after the date of declaration of such dividend if the
dividend would have been permitted on the date of declaration; (2) the
acquisition of any shares of Capital Stock of the Company, either (i) solely in
exchange for shares of Qualified Capital Stock of the Company or (ii) if no
Default or Event of Default shall have occurred and be continuing, through the
application of net proceeds of a substantially concurrent sale or incurrence
for cash (other than to a Subsidiary of the Company) of shares of Qualified
Capital Stock of the Company; (3) if no Default or Event of Default shall have
occurred and be continuing, the acquisition of any Indebtedness of the Company
that is subordinate or junior in right of payment to the Notes either (i)
solely in exchange for shares of Qualified Capital Stock of the Company, or
(ii) through the application of net proceeds of a substantially concurrent sale
or incurrence for cash (other than to a Subsidiary of the Company) of (A)
shares of
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Qualified Capital Stock of the Company or (B) Refinancing Indebtedness; (4) if
no Default or Event of Default shall have occurred and be continuing,
repurchases by the Company of Common Stock of the Company from employees of the
Company or any of its Subsidiaries or their authorized representatives upon the
death, disability or termination of employment of such employees, in an
aggregate amount not to exceed $2 million in any calendar year; (5) the
redemption or repurchase of any Common Stock of the Company held by a
Wholly-Owned Restricted Subsidiary of the Company which obtained such Common
Stock directly from the Company; or (6) the payment of consideration by an
unaffiliated third party to shareholders of the Company. In determining the
aggregate amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of the immediately preceding paragraph, cash
amounts expended pursuant to clauses (1), (2) (3)(ii)(A) and (4) shall be
included in such calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Section 4.03 and setting forth in
reasonable detail the basis upon which the required calculations were computed,
which calculations may be based upon the Company's quarterly financial
statements last provided to the Trustee pursuant to Section 4.09.
SECTION 4.04 Corporate Existence.
Except as otherwise permitted by Article Five, the Company
shall do or cause to be done all things reasonably necessary to preserve and
keep in full force and effect its corporate or other existence and the
corporate or other existence each of its Restricted Subsidiaries in accordance
with the respective organizational documents of each such Restricted Subsidiary
and the material rights (charter and statutory) and franchises of the Company
and each such Restricted Subsidiary, except for such noncompliances as are not
in the aggregate reasonably likely to have a material adverse effect on the
financial condition or results of operations of the Company and its Restricted
Subsidiaries taken as a whole.
SECTION 4.05 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
material lawful claims for labor, materials, supplies and services that, if
unpaid, might by law become a Lien upon the property of it or any
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of its Subsidiaries; except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Restricted Subsidiaries as a
whole; provided, however, that there shall not be required to be paid or
discharged any such tax, assessment or charge, the amount, applicability or
validity of which is being contested in good faith by appropriate proceedings
and for which adequate provision has been made or where the failure to effect
such payment or discharge is not adverse in any material respect to the
Holders.
SECTION 4.06 Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, make all reasonable efforts to maintain its material
properties in normal condition (subject to ordinary wear and tear) and make all
reasonably necessary repairs, renewals or replacements thereto as in the
judgment of the Company may be reasonably necessary to the conduct of the
business of the Company and its Restricted Subsidiaries; except for such
noncompliances as are not in the aggregate reasonably likely to have a material
adverse effect on the financial condition or results of operations of the
Company and its Restricted Subsidiaries taken as a whole.
(b) The Company shall provide or cause to be provided, for
itself and each of its Restricted Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Company, are reasonably adequate and
appropriate for the conduct of the business of the Company and such Restricted
Subsidiaries.
SECTION 4.07 Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each of the Company's fiscal years, an Officers' Certificate
stating that a review of its activities and the activities of its Restricted
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether it has
kept, observed, performed and fulfilled its obligations under this Indenture
and further stating, as to each such officer signing such certificate, that to
the best of his knowledge the Company during such preceding fiscal year has
kept, observed, performed and fulfilled each and every such obligation and at
the date of such certificate there is no Default or Event of Default that has
occurred and is continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe the Default or Event of Default and
its status with particularity. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes its
fiscal year end.
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(b) The copy of the annual report on Form 10-K as filed with
the SEC and delivered to the Trustee pursuant to Section 4.09 shall be
accompanied by a written report of the Company's independent accountants that
in conducting their audit of the financial statements which are a part of such
annual report or such annual financial statements nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) So long as any of the Notes are outstanding (i) if any
Default or Event of Default has occurred and is continuing or (ii) if any
Holder seeks to exercise any remedy hereunder with respect to a claimed Default
under this Indenture or the Notes, the Company shall deliver to the Trustee as
soon as practicable, and in any event within five days after the Company
becomes aware of such event, by registered or certified mail or by facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action.
SECTION 4.08 Compliance with Laws.
The Company shall comply, and shall cause each of its
Restricted Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America and each
other country in which the Company or any of its Restricted Subsidiaries
conducts business, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of their
respective businesses and the ownership of their respective properties, except
for such noncompliances as are not in the aggregate reasonably likely to have a
material adverse effect on the financial condition or results of operations of
the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.09 Reports to Holders.
The Company will deliver to the Trustee within 15 days after
the filing of the same with the Commission, copies of quarterly and annual
reports and of the information, documents and other reports, if any, which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Within 180 days after the Issue Date, notwithstanding that
the Company may not be subject to the reporting requirements of Section
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13 or 15(d) of the Exchange Act, the Company will file with the Commission, to
the extent permitted, and provide the Trustee and Holders with such annual
reports and such information, documents and other reports specified in Section
13 or 15(d) of the Exchange Act which it would have been required to file had
it been subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act. The Company will also comply with the other provisions of the TIA
ss. 314(a). Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.10 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of, premium or interest on the Notes
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the obligations or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.11 Limitations on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions on terms
that are no less favorable than those that might reasonably have been obtained
in a comparable transaction at such time on an arm's-length basis from a Person
that is not an Affiliate of the Company or such Restricted Subsidiary. All
Affiliate Transactions (and each series of related Affiliate Transactions which
are similar or part of a common plan) that involve an aggregate fair market
value of more than $2 million shall be approved by the Board
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of Directors of the Company or such Restricted Subsidiary, as the case may be,
such approval to be evidenced by a Board Resolution stating that such Board of
Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $5 million, the Company or such Restricted Subsidiary, as the case may be,
shall, prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such transaction or series of related transactions to the Company
or the relevant Restricted Subsidiary, as the case may be, from a financial
point of view, from an Independent Financial Advisor and file the same with the
Trustee.
(b) The restrictions set forth in clause (a) shall not apply
to (i) reasonable fees and compensation paid to and indemnity provided on
behalf of, officers, directors, employees or consultants of the Company or any
Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management; (ii) transactions
exclusively between or among the Company and any of its Restricted Subsidiaries
or exclusively between or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by this Indenture; (iii) any
agreement as in effect as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
or in any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Issue Date;
(iv) Restricted Payments permitted by this Indenture; (v) transactions with
distributors or other purchases or sales of goods or services, in each case in
the ordinary course of business and otherwise in compliance with the terms of
this Indenture and which are fair to the Company or the Restricted Subsidiaries
as applicable, in the reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms at least as favorable
as might reasonably have been obtained at such time from an unaffiliated party;
and (vi) the CT Film Purchase.
SECTION 4.12 Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness). Notwithstanding the
foregoing, if no Default or Event of Default shall have occurred and be
continuing
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at the time of or as a consequence of the incurrence of any such Indebtedness,
the Company and its Restricted Subsidiaries which are Guarantors may incur
Indebtedness (including, without limitation, Acquired Indebtedness) and
Restricted Subsidiaries of the Company which are not Guarantors may incur
Acquired Indebtedness, in each case if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company is greater than 2.0 to 1.0 if such
proposed incurrence is on or prior to the third anniversary of the Issue Date
and 2.25 to 1.0 if such proposed incurrence is thereafter. Upon the repayment
of Indebtedness which may have been incurred pursuant to more than one
provision of this Indenture, the Company may, in its sole discretion, designate
which provision such Indebtedness shall have been incurred under.
SECTION 4.13 Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or
make any other distributions on or in respect of its Capital Stock; (b) make
loans or advances or to pay any Indebtedness or other obligation owed to the
Company or any other Restricted Subsidiary of the Company; or (c) transfer any
of its property or assets to the Company or any other Restricted Subsidiary of
the Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) customary non-assignment
provisions of any contract or any lease governing a leasehold interest of any
Restricted Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired; (5) agreements existing on the
Issue Date to the extent and in the manner such agreements are in effect on the
Issue Date; (6) restrictions imposed by any agreement to sell assets or Capital
Stock permitted under this Indenture to any Person pending the closing of such
sale; (7) any agreement or instrument governing Capital Stock of any Person
that is acquired as in effect at the time of such acquisition which was not
entered into in connection with, or in anticipation or contemplation of, such
acquisition; (8) Indebtedness or other contractual requirements of a
Securitization Entity in connection with a Qualified Securitization
Transaction; provided that such restrictions apply only to such Securitization
Entity; (9) Liens incurred in accordance with the covenant described under
Section 4.18; (10) any restrictions under an agreement governing Indebtedness
of a Foreign Subsidiary permitted
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under Section 4.12; (11) the Credit Agreement; or (12) an agreement governing
Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clause (2), (4), (5), (8), (9), (10) or
(11) above; provided, however, that the provisions relating to such encumbrance
or restriction contained in any such Indebtedness are no less favorable to the
Company in any material respect as determined by the Board of Directors of the
Company in their reasonable and good faith judgment than the provisions
relating to such encumbrance or restriction contained in agreements referred to
in such clause (2), (4), (5), (8), (9), (10) or (11).
SECTION 4.14
Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
will have the right to require that the Company purchase all or a portion of
such Holder's Notes in cash pursuant to the offer described below (the "Change
of Control Offer"), at a purchase price equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase.
(b) Prior to the mailing of the notice referred to below, but
in any event within 30 days following any Change of Control, the Company
covenants to (i) repay in full and terminate all commitments under Indebtedness
under the Credit Agreement and all other Senior Debt the terms of which require
repayment upon a Change of Control or offer to repay in full and terminate all
commitments under all Indebtedness under the Credit Agreement and all other
such Senior Debt and to repay the Indebtedness owed to each lender which has
accepted such offer or (ii) obtain the requisite consents under the Credit
Agreement and all other Senior Debt to permit the repurchase of the Notes as
provided below. The Company shall first comply with the covenant in the
immediately preceding sentence before it shall be required to repurchase Notes
pursuant to the provisions described below. The Company's failure to comply
with the covenant described in the immediately preceding sentence shall be
governed by clause (3), and not clause (2), of Section 6.01.
(c) Within 30 days following the date on which a Change of
Control occurs (the "Change of Control Date"), the Company shall send, by first
class mail, postage prepaid, a notice to each Holder of Notes at their 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
Section 4.14 of the Indenture and that all Notes
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validly tendered and not withdrawn will be accepted for
payment;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase 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) (the "Change of Control
Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the 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 facsimile transmission
or letter setting forth the name of the Holder, the principal amount
of the Notes the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;
(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.
(d) On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Notes or portions thereof (in integral
multiples of $1,000) validly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent in accordance with Section 2.14 U.S. Legal
Tender sufficient to pay the purchase price plus accrued and unpaid interest,
if any, of all
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Notes to be purchased and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or portions thereof
being purchased by the Company. Upon receipt by the Paying Agent of the monies
specified in clause (ii) above and a copy of the Officers' Certificate
specified in clause (iii) 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 Change of Control 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 4.14, the Trustee shall act as the
Paying Agent.
(e) 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 rule, laws and regulations are applicable in
connection with the purchase of the Notes pursuant to a Change of Control
Offer. To the extent the provisions of any securities laws and regulations
conflict with the provisions of this Indenture relating to a Change of Control
Offer, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations relating
to such Change of Control Offer by virtue thereof.
SECTION 4.15 Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Company's Board of Directors), (ii) at least 75% of the consideration
received by the Company or the Restricted Subsidiary, as the case may be, from
such Asset Sale shall be in the form of cash or Cash Equivalents (provided that
the amount of any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or any such Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes) that are assumed by the transferee of any such assets shall be deemed to
be cash for purposes of this provision) and is received at the time of such
disposition; and (iii) upon the consummation of an Asset
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Sale, the Company shall apply, or cause such Restricted Subsidiary to apply,
the Net Cash Proceeds relating to such Asset Sale within 365 days (or in the
case of Foreign Subsidiary Asset Sales, 545 days) of receipt thereof either (A)
to prepay any Senior Debt, Guarantor Senior Debt or Indebtedness of a
Restricted Subsidiary that is not a Guarantor and, in the case of any such
Indebtedness under any revolving credit facility, effect a permanent reduction
in the availability under such revolving credit facility, (B) to make an
investment in or expenditures for properties and assets (including Capital
Stock of any entity) that replace the properties and assets that were the
subject of such Asset Sale or in properties and assets (including Capital Stock
of any entity) that will be used in the business of the Company and its
Subsidiaries as existing on the Issue Date or in businesses reasonably related
thereto ("Replacement Assets"), or (C) a combination of prepayment and
investment permitted by the foregoing clauses (iii)(A) and (iii)(B). On the
366th day (or in the case of Foreign Subsidiary Asset Sales, the 546th day)
after an Asset Sale or such earlier date, if any, as the Board of Directors of
the Company or of such Restricted Subsidiary determines not to apply the Net
Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A),
(iii)(B) and (iii)(C) of the next preceding sentence (each, a "Net Proceeds
Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not
been applied on or before such Net Proceeds Offer Trigger Date as permitted in
clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a
"Net Proceeds Offer Amount") shall be applied by the Company or such Restricted
Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date
(the "Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders on a
pro rata basis, that amount of Notes equal to the Net Proceeds Offer Amount at
a price equal to 100% of the principal amount of the Notes to be purchased,
plus accrued and unpaid interest thereon, if any, to the date of purchase;
provided, however, that if at any time any non-cash consideration received by
the Company or any Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this covenant. The Company shall not be required to
make a Net Proceeds Offer until there is an aggregate unutilized Net Proceeds
Offer Amount equal to or in excess of $10 million resulting from one or more
Asset Sales, at which time, the unutilized Net Proceeds Offer Amount, shall be
applied as required pursuant to this paragraph; provided, however, that the
first $10 million of such Net Proceeds Offer Amount need not be applied as
required pursuant to this paragraph.
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(b) In the event of the transfer of substantially all (but
not all) of the property and assets of the Company and its Restricted
Subsidiaries as an entirety to a Person in a 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 to have sold the properties
and assets of the Company and its Restricted Subsidiaries not so transferred
for purposes of this covenant, and shall comply with the provisions of this
covenant with respect to such deemed sale as if it were an Asset Sale. In
addition, the fair market value of such properties and assets of the Company or
its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash
Proceeds for purposes of this covenant.
(c) Notwithstanding Section 4.15(a) and (b), the Company and
its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraphs to the extent (i) at least 80% of the
consideration for such Asset Sale constitutes Replacement Assets and (ii) such
Asset Sale is for fair market value; provided, however, that any consideration
not constituting Replacement Assets received by the Company or any of its
Restricted Subsidiaries in connection with any Asset Sale permitted to be
consummated under this paragraph shall constitute Net Cash Proceeds subject to
the provisions of Section 4.15(a) and (b).
(d) Subject to the deferral right set forth in the final
sentence of Section 4.15(a), each notice of a Net Proceeds Offer pursuant to
this Section 4.15 shall be mailed, by first-class mail, by the Company to
Holders of Notes at their last registered address not more than 30 days
following the Net Proceeds Offer Trigger Date, with a copy to the Trustee. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Net Proceeds Offer and shall state the
following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 4.15 of the Indenture, 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 aggregate
amount of the Net Proceeds Offer, the Company shall select the Notes
to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations
of $1,000 or multiples thereof shall be purchased) and that the Net
Proceeds Offer shall remain open for a period of 20 Business Days or
such longer periods as may be required by law;
(2) the purchase price (including the amount of accrued
interest) and the Net Proceeds Offer Payment Date (which shall be not
less than 30 nor more than 45 days following the
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applicable Net Proceeds Offer Trigger Date and which shall be at least
five Business Days after the Trustee receives notice thereof from the
Company);
(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 the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the 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 facsimile transmission
or letter setting forth the name of the Holder, the principal amount
of the Notes the holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;
and
(7) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased
portion of the 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.
(e) On or before the Net Proceeds Offer Payment Date, the
Company shall (i) accept for payment Notes or portions thereof (in integral
multiples of $1,000) validly tendered pursuant to the Net Proceeds Offer, (ii)
deposit with the Paying Agent in accordance with Section 2.14 U.S. Legal Tender
sufficient to pay the purchase price plus accrued and unpaid interest, if any,
of all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or portions thereof
being purchased by the Company. Upon receipt by the Paying Agent of the monies
specified in clause (ii) above and a copy of the Officers' Certificate
specified in clause (iii) above, the Paying Agent shall promptly mail or wire
transfer 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
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preceding sentence. The Trustee shall promptly authenticate and make available
for delivery 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 4.15, the Trustee shall act as the Paying Agent.
(f) 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.
(g) 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 rule, laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To
the extent the provisions of any securities laws and regulations conflict with
the provisions of this Indenture relating to a Net Proceeds Offer, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations relating to such Net Proceeds Offer
by virtue thereof.
SECTION 4.16 Prohibition on Incurrence of Senior
Subordinated Debt.
The Company will not, and will not cause or permit any
Guarantor to, incur or suffer to exist Indebtedness that by its terms is senior
in right of payment to the Notes or the Guarantees, as the case may be, and
subordinate in right of payment to any other Indebtedness of the Company or the
Guarantor, as the case may be.
SECTION 4.17 Limitation on Preferred Stock of
Restricted Subsidiaries.
The Company will not permit any of its Restricted
Subsidiaries to, issue any Preferred Stock (other than to the Company or to a
Wholly-Owned Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Wholly-Owned Restricted Subsidiary of the Company) to own
any Preferred Stock of any Restricted Subsidiary of the Company.
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SECTION 4.18 Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on
the Issue Date or acquired after the Issue Date, which secures Indebtedness
pasi passu with or subordinated to the Notes or the Guarantees unless (i) if
such Lien secures Indebtedness which is pari passu with the Notes or the
Guarantees, then the Notes or the Guarantees, as the case may be, are secured
on an equal and ratable basis with the obligations so secured until such time
as such obligation is no longer secured by a Lien or (ii) if such Lien secures
Indebtedness which is subordinated to the Notes or the Guarantees, any such
Lien shall be subordinated to a Lien granted to the Holders of the Notes in the
same collateral as that securing such Lien to the same extent as such
subordinated Indebtedness is subordinated to the Notes or the Guarantees, as
the case may be.
SECTION 4.19 Limitation of Guarantees by Restricted Subsidiaries.
The Company will not permit any of its Restricted
Subsidiaries, directly or indirectly, by way of the pledge of any intercompany
note or otherwise, to assume, guarantee or in any other manner become liable
with respect to any Indebtedness of the Company or any other Restricted
Subsidiary (other than (A) Indebtedness under Currency Agreements in reliance
on clause (v) of the definition of Permitted Indebtedness, (B) Interest Swap
Obligations or Commodity Agreements incurred in reliance on clause (iv) of the
definition of Permitted Indebtedness or (C) any guarantee by a Foreign
Subsidiary of Indebtedness of another Foreign Subsidiary permitted under
Section 4.12) unless, in any such case (a) such Restricted Subsidiary that is
not a Guarantor executes and delivers a supplemental indenture to this
Indenture, providing a Guarantee and (b) (x) if any such assumption, guarantee
or other liability of such Restricted Subsidiary is provided in respect of
Senior Debt, the guarantee or other instrument provided by such Restricted
Subsidiary in respect of such Senior Debt may be superior to the Guarantee
pursuant to subordination provisions no less favorable in any material respect
to the Holders than those contained in this Indenture and (y) if such
assumption, guarantee or other liability of such Restricted Subsidiary is
provided in respect of Indebtedness that is expressly subordinated to the
Notes, the guarantee or other instrument provided by such Restricted Subsidiary
in respect of such subordinated Indebtedness shall be subordinated to the
Guarantee pursuant to subordination provisions no less favorable in any
material respect to the Holders than those contained in this Indenture.
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Notwithstanding the foregoing, any such Guarantee by a
Restricted Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon: (i) the
unconditional release of such Restricted Subsidiary from its liability in
respect of the Indebtedness in connection with which such Guarantee was
executed and delivered pursuant to the preceding paragraph; or (ii) any sale or
other disposition (by merger or otherwise) to any Person which is not a
Restricted Subsidiary of the Company of all of the Company's Capital Stock in,
or all or substantially all of the assets of, such Restricted Subsidiary or the
parent of such Restricted Subsidiary; provided that (a) such sale or
disposition of such Capital Stock or assets is otherwise in compliance with the
terms of this Indenture and (b) such assumption, guarantee or other liability
of such Restricted Subsidiary has been released by the holders of the other
Indebtedness so guaranteed; or (iii) such Guarantor becoming an Unrestricted
Subsidiary in accordance with this Indenture.
SECTION 4.20 Conduct of Business.
The Company and its Restricted Subsidiaries (other than a
Securitization Entity) will not engage in any businesses which are not the
same, similar or related to the businesses in which the Company and its
Restricted Subsidiaries are engaged on the Issue Date, except to the extent
that after engaging in any new business, the Company and its Restricted
Subsidiaries, taken as a whole, remain substantially engaged in similar lines
of business as are conducted by them on the Issue Date.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or a series
of related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey
or otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(i) either (1) the Company shall be the surviving or
continuing entity or (2) the Person (if other than the
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Company) formed by such consolidation or into which the Company is
merged or the Person that acquires by sale, assignment, transfer,
lease, conveyance or other disposition the properties and assets of
the Company and of the Company's Restricted Subsidiaries substantially
as an entirety (the "Surviving Entity") (x) shall be an entity
organized and validly existing under the laws of the United States or
any State thereof or the District of Columbia and (y) shall expressly
assume, by supplemental indenture (in form and substance satisfactory
to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, and
interest on all the Notes and the performance of every covenant of the
Notes, this Indenture and the Registration Rights Agreement on the
part of the Company to be performed or observed, as the case may be;
(ii) immediately after giving effect to such transaction and
the assumption contemplated by clause (i)(2)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction), the Company or the Surviving Entity, as the case may be,
(1) shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such
transaction and (2) shall be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 4.12;
(iii) immediately before and immediately after giving effect
to such transaction and the assumption contemplated by clause
(i)(2)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing; and
(iv) the Company or the Surviving Entity, as the case may be,
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, transfer, lease, conveyance or other disposition
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent in this
Indenture relating to such transaction have been satisfied.
(b) For purposes of this Section 5.01, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or
series of related transactions) of all or substantially all of the
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properties and assets of one or more Restricted Subsidiaries of the Company,
the Capital Stock of which constitutes all or substantially all of the
properties or assets of the Company, will be deemed to be the transfer of all
or substantially all of the properties and assets of the Company unless such
transfer is to the Company or one or more Wholly-Owned Restricted Subsidiaries.
(c) Each Guarantor (other than any Guarantor whose Guarantee
is to be released in accordance with the terms of the Guarantee and this
Indenture in connection with any transaction complying with the provisions of
Section 4.15) will not, and the Company will not cause or permit any Guarantor
to, consolidate with or merge with or into any Person other than the Company or
any other Guarantor unless: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor) or to which such sale,
lease, conveyance or other disposition shall have been made is an entity
organized and existing under the laws of the United States or any State thereof
or the District of Columbia; (ii) such entity assumes by supplemental indenture
all of the obligations of the Guarantor on its Guarantee; (iii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and (iv) immediately after giving effect to
such transaction and the use of any net proceeds therefrom on a pro forma
basis, the Company could satisfy the provisions of clause (a) (ii) above. Any
merger or consolidation of a Guarantor with and into the Company (with the
Company being the surviving entity) or another Guarantor need not comply with
clause (a) above. Any merger of the Company with and into a Guarantor need not
comply with clause (a)(ii)(2) above.
SECTION 5.02 Successor Corporation Substituted.
Upon any consolidation, combination or merger, or any
transfer of all or substantially all of the assets of the Company in accordance
with Section 5.01 in which the Company is not the continuing entity, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Notes with the same effect as if such successor
Person had been named as the Company herein. When a successor entity assumes
all of the obligations of the Company hereunder and under the Notes and agrees
to be bound hereby and thereby, the predecessor shall be released from such
obligations.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
Each of the following shall be an "Event of Default":
(1) the failure to pay interest on the Notes when the same
becomes due and payable and such Default continues for a period of 30
days (whether or not such payment shall be prohibited by the
provisions described under Article Ten);
(2) the failure to pay principal on any Notes, when such
principal becomes due and payable, at maturity, upon acceleration,
upon redemption or otherwise (including the failure to make a payment
to purchase Notes tendered pursuant to a Change of Control Offer or a
Net Proceeds Offer) (whether or not such payment shall be prohibited
by the provisions described under Article Ten);
(3) a default in the observance or performance of any other
covenant or agreement contained in this Indenture, which Default
continues for a period of 45 days after the Company receives written
notice thereof specifying the default (and demanding that such Default
be remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.01, which will constitute an Event
of Default with such notice requirement but without such passage of
time requirement);
(4) the failure to pay at the final maturity (giving effect
to any applicable grace periods and any extensions thereof) the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company or the acceleration of the final stated
maturity of any such Indebtedness, if, in either case, the aggregate
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated, aggregates
$10 million or more at any time and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such final maturity or acceleration;
(5) one or more judgments in an aggregate amount in excess of
$10 million (which are not covered by third party insurance as to
which the insurer has not disclaimed coverage) shall have been
rendered against the Company or any of its
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Restricted Subsidiaries and such judgment or judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and nonappealable;
(6) the Company or any Restricted Subsidiary which is also a
Material Subsidiary (A) commences a voluntary case or proceeding under
any Bankruptcy Law with respect to itself, (B) consents to the entry
of a judgment, decree or order for relief against it in an involuntary
case or proceeding under any Bankruptcy Law, (C) consents to the
appointment of a custodian of it or for substantially all of its
property, (D) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it or (E) makes a
general assignment for the benefit of its creditors;
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any Restricted
Subsidiary which is also a Material Subsidiary in an involuntary case
or proceeding under any Bankruptcy Law, which shall (A) approve as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any Material
Subsidiary, (B) appoint a custodian of the Company or any Material
Subsidiary or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(8) any Guarantee of a Material Subsidiary ceases to be in
full force and effect or any Guarantee of a Material Subsidiary is
declared to be null and void and unenforceable or any Guarantee of a
Material Subsidiary is found to be invalid or any of the Guarantors
that is a Material Subsidiary denies its liability under its Guarantee
(other than by reason of release of a Guarantor in accordance with the
terms of this Indenture).
SECTION 6.02 Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in Section 6.01(6) or (7) with respect to the Company) shall occur
and be continuing, the Trustee or the Holders of at least 25% in principal
amount of outstanding Notes may, declare the principal of all the Notes,
together with all accrued and unpaid interest, to be due and payable by notice
in writing to the Company and, in the case of an acceleration notice from the
Holders of at least 25% in principal amount of the outstanding Notes, the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii)
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if there are any amounts outstanding under the Designated Senior Debt, shall
become immediately due and payable upon the first to occur of an acceleration
under the Designated Senior Debt or 5 business days after receipt by the
Company and the Representative under the Designated Senior Debt of such
Acceleration Notice. If an Event of Default specified in Section 6.01(6) or (7)
with respect to the Company occurs and is continuing, then all unpaid principal
of and premium, if any, and accrued and unpaid interest on all of the
outstanding Notes will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with
respect to the Notes as described in clause (a) above, the Holders of a
majority in principal amount of the Notes then outstanding (by notice to the
Trustee) may rescind and cancel such declaration and its consequences if (i)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction, (ii) all existing Events of Default have been cured or
waived except nonpayment of principal or interest on the Notes that has become
due solely because of the acceleration, (iii) to the extent the payment of such
interest is lawful, interest (at the same rate specified in the Notes) on
overdue installments of interest and overdue payments of principal, which has
become due other than by such declaration of acceleration, has been paid, (iv)
the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances and (v) in the event of
the cure or waiver of a Default or Event of Default of the type described in
Sections 6.01(6) and (7), the Trustee has received an Officers' Certificate and
Opinion of Counsel that such Default or Event of Default has been cured or
waived and the Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel. No such rescission shall affect
any subsequent Default or Event of Default or impair any right consequent
thereto.
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, premium, if any, or accrued and unpaid interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder 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
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any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the Notes by notice to the Trustee may waive any
existing Default or Event of Default and its consequences, except a Default in
the payment of the principal of or interest on any Note as specified in clauses
(1) and (2) of Section 6.01.
SECTION 6.05 Control by Majority.
Subject to Section 9.02, the Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it, including, without
limitation, any remedies provided for in Section 6.03. Subject to Section 7.01,
however, the Trustee may, in its discretion, refuse to follow any direction
that conflicts with any law or this Indenture, that the Trustee determines may
be unduly prejudicial to the rights of another Holder (it being understood that
the Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders) or that may involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee, in its discretion, that is not
inconsistent with such direction.
SECTION 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(1) the Holder gives to the Trustee notice of a
continuing Event of Default;
(2) Holders of at least 25% in aggregate principal
amount of the then outstanding Notes make a written request to
the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity or security
against any loss, liability or expense to be incurred in compliance
with such request which is satisfactory to the Trustee;
(4) the Trustee does not comply with the request within
45 days after receipt of the request and the offer of
satisfactory indemnity or security; and
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(5) during such 45-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of, premium and interest on
a Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Notes for the whole amount of
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest at the rate set forth in the Notes
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any
other obligor upon the Notes, any of their respective creditors or any of their
respective property, and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes,
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disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07. The Company's payment
obligations under this Section 6.09 shall be secured in accordance with the
provisions of Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 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, its agents and attorneys for
amounts due under Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their
collection costs;
Third: to Holders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any,
and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes,
as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a
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suit by a Holder or Holders of more than 10% in aggregate principal amount of
the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent Person would exercise or use under the circumstances in
the conduct of its own affairs.
(b) Except during the continuance of a Default or an
Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no duties,
covenants, responsibilities or obligations shall be implied in this
Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
(including Officers' Certificates) or opinions (including Opinions of
Counsel) furnished to the Trustee and conforming to the requirements
of this Indenture. However, as to any certificates or opinions which
are required by any provision of this Indenture to be delivered or
provided to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein
contained, the Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
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(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and
(d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
(g) In the absence of bad faith, negligence or willful
misconduct on the part of the Trustee, the Trustee shall not be responsible for
the application of any money by any Paying Agent other than the Trustee.
SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 13.04 and 13.05. The Trustee shall not
be liable for and shall be fully protected in respect of any action it takes or
omits to take in good faith in reliance on such Officers' Certificate, or an
Opinion of Counsel or advice of counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of
any agent or attorney appointed with due care.
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(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith that it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution (including any Board
Resolution), certificate (including any Officers' Certificate), statement,
instrument, opinion (including any Opinion of Counsel), notice, request,
direction, consent, order, bond, debenture, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company, to examine the books, records, and premises
of the Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of the Notes pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred by it in compliance with such request, order or direction.
(g) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from
liability with respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(h) The Trustee shall not be required to give any bond
or surety in respect of the performance of its powers and duties
hereunder.
(i) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company,
any Restricted or Unrestricted Subsidiary, or their respective Affiliates, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
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The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, and it shall not be accountable for
the Company's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture or the Notes
other than the Trustee's certificate of authentication.
SECTION 7.05 Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if the Trustee has actual knowledge of such Default or Event of Default,
the Trustee shall mail to each Noteholder notice of the uncured Default or
Event of Default within 60 days after such Default or Event of Default occurs.
Except in the case of a Default or an Event of Default in the payment of
interest or principal of, premium or interest on, any Note, including an
accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds Purchase
Date pursuant to a Net Proceeds Offer and, except in the case of a failure to
comply with Article Five, the Trustee may withhold the notice if and so long as
the Trustee's Board of Directors, and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders. The
Trustee shall not be deemed to have knowledge of a Default or Event of Default
other than (i) any Event of Default occurring pursuant to Sections 6.01(1) or
6.01(2); or (ii) any Default or Event of Default of which a Trust Officer shall
have received written notification or obtained actual knowledge. As used
herein, the term "actual knowledge" means the actual fact or statement of
knowing, without any duty to make any investigation with regard thereto.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after April 1 of each year beginning with
April 1, 1998, the Trustee shall, to the extent that any of the events
described in TIA ss. 313(a) occurred within the previous twelve months, but not
otherwise, mail to each Noteholder a brief report dated as of such date that
complies with TIA ss. 313(a). The Trustee also shall comply with TIA xx.xx.
313(b) and 313(c).
A copy of each report at the time of its mailing to
Noteholders shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange, and if the Notes are so listed, the
Trustee shall comply with TIA ss. 313(d).
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SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time, and
the Trustee shall be entitled to, such compensation as may be agreed upon by
the Company and the Trustee. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by it in connection with the
performance of its duties and the discharge of its obligations under this
Indenture. Such expenses shall include the reasonable fees and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents,
employees, officers, stockholders and directors for, and hold them harmless
against, any loss, liability or expense incurred by them except for such
actions to the extent caused by any negligence, bad faith or willful misconduct
on their part, arising out of or in connection with the acceptance or
administration of this trust including the reasonable costs and expenses of
defending themselves against or investigating any claim or liability in
connection with the exercise or performance of any of the Trustee's rights,
powers or duties hereunder. The Trustee shall notify the Company promptly of
any claim asserted against the Trustee or any of its agents, employees,
officers, stockholders and directors for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee and its agents, employees, officers, stockholders and directors
subject to the claim may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided, however, that the
Company will not be required to pay such fees and expenses if it assumes the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee and its agents, employees, officers, stockholders and directors
subject to the claim in connection with such defense as reasonably determined
by the Trustee; provided, further, that the Company shall not be liable to pay
the fees and expenses of more than one local counsel in any one jurisdiction.
The Company need not pay for any settlement made without its written consent.
The Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Notes.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) occurs, such expenses and
the compensation for such services shall be paid to the extent allowed under
any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the
termination of this Indenture.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing
at least 30 days in advance. The Holders of a majority in principal amount of
the outstanding Notes may remove the Trustee by so notifying the Company and
the Trustee and may appoint a successor Trustee with the Company's consent. A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only with the successor Trustee's acceptance of
appointment as provided in this Section. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an
order for relief is entered with respect to the Trustee under
any Bankruptcy Law;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall notify each Holder
of such event and shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Holder.
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If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
expense of the Company), the Company or the Holders of at least 10% in
aggregate principal amount of the outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however, that
such corporation shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA xx.xx. 310(a)(1) and 310(a)(2). The Trustee (or in the case
of a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
In addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of such bank holding company, shall meet the
capital requirements of TIA ss. 310(a)(2). The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other notes, or
certificates of interest or participation in other notes, of the Company are
outstanding, if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met. The provisions of TIA ss. 310 shall apply to the Company and
any other obligor of the Notes.
SECTION 7.11 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has
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resigned or been removed shall be subject to TIA ss. 311(a) to the extent
indicated therein. The provisions of TIA ss. 311 shall apply to the Company and
any other obligor of the Notes.
SECTION 7.12 Trustee's Application for Instructions from the
Company.
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the
date on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on
or after the date specified in such application (which date shall not be less
than three Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to
be taken or omitted.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 Termination of the Company's Obligations.
This Indenture will be Discharged and will cease to be of
further effect and the obligations of the Company under the Notes and this
Indenture shall terminate (except that the obligations under Sections 2.03
through 2.07, 7.01, 7.02, 7.07 and 7.08 and the rights, powers, trusts, duties
and immunities of the Trustee hereunder shall survive the effect of this
Article Eight) when (a) either (i) all Notes, theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been replaced or
paid and Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust) have been delivered to the Trustee for
cancellation or (ii) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of deposit together with
irrevocable
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instructions from the Company directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be; (b) the Company
has paid all other sums payable under this Indenture by the Company; and (c)
the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied
with; provided, however, that such counsel may rely, as to matters of fact, on
a certificate or certificates of officers of the Company.
In addition, at the Company's option, either (a) the Company
shall be deemed to have been Discharged from any and all obligations with
respect to the outstanding Notes ("Legal Defeasance") after the applicable
conditions set forth below have been satisfied (except for the obligations of
the Company under Sections 2.03, 2.04, 2.06, 2.07, 7.01, 7.02, 7.07 and this
Section 8.01) or (b) the Company shall cease to be under any obligation to
comply with any term, provision or condition set forth in Sections 4.03, 4.09
and 4.11 through 4.20 and Section 5.01 and thereafter any omission to comply
with such obligations shall not constitute a Default or Event of Default with
respect to the Notes ("Covenant Defeasance") after the applicable conditions
set forth below have been satisfied:
(1) The Company shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust, for the benefit
of the Holders cash in U.S. Legal Tender, non-callable U.S. Government
Obligations or a combination thereof that, together with the payment
of interest and premium thereon and principal in respect thereof in
accordance with their terms, will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
all the principal of, premium, if any, and interest on the Notes on
the dates such payments are due in accordance with the terms of such
Notes, as well as the Trustee's fees and expenses; provided, however,
that no deposits made pursuant to this Section 8.01(1) shall cause the
Trustee to have a conflicting interest as defined in and for purposes
of the TIA; and provided, further, that, as confirmed by an Opinion of
Counsel, no such deposit shall result in the Company, the Trustee or
the trust becoming or being deemed to be an "investment company" under
the Investment Company Act of 1940;
(2) No Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit
after giving effect to such deposit (other than a Default or Event of
Default resulting from the incurrence of
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Indebtedness all or a portion of the proceeds of which will be used to
defease the Notes pursuant to this Article Eight) or insofar as Events
of Default pursuant to Section 6.01(6) or (7) are concerned, at any
time in the period ending on the 91st day after the date of deposit;
(3) The Company shall have delivered to the Trustee an
Opinion of Counsel, to the effect that (A) either (i) the Company has
assigned all its ownership interest in the trust funds to the Trustee
or (ii) the Trustee has a valid perfected security interest in the
trust funds and (B) assuming no intervening bankruptcy of the Company
between the date of the deposit and the 124th day following the
perfection of a security interest in the deposit and that no Holder is
an insider of the Company, after the 124th day following the
perfection of a security interest in the deposit, the trust funds will
not be subject to avoidance as a preference under Section 547 of the
Federal Bankruptcy Code;
(4) The Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to Section 7.07;
(5) No such deposit will result in a Default under this
Indenture or a breach or violation of, or constitute a default under,
any other instrument or material agreement to which the Company or any
of its Subsidiaries is a party or by which it or its property is
bound;
(6) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(7) In the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture,
there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion of
counsel shall confirm that, the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
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(8) In the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance
had not occurred; and
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that all
conditions precedent to Legal Defeasance or Covenant Defeasance, as
the case may be, have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel
required by subparagraph 7 above need not be delivered if all Notes not
theretofore delivered to the Trustee for cancellation (i) have become due and
payable, (ii) will become due and payable on the Maturity Date within one year,
or (iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
SECTION 8.02 Acknowledgment of Discharge by Trustee.
Subject to Section 8.05, after (i) the conditions of Section
8.01, have been satisfied and (ii) the Company has delivered to the Trustee an
Opinion of Counsel, stating that all conditions precedent referred to in clause
(i) above relating to the satisfaction and discharge of this Indenture have
been complied with, the Trustee upon written request of the Company shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified in this Article
Eight.
SECTION 8.03 Application of Trust Money.
The Trustee shall hold in trust Funds deposited with it
pursuant to Section 8.01. It shall apply the Funds through the Paying Agent and
in accordance with this Indenture to the payment of all the principal of, or
premium, if any, and interest on the Notes.
SECTION 8.04 Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company any Funds held by them for the payment of all the principal of, or
premium, if any, and interest that remains unclaimed for one year; provided,
however, that the Trustee or such
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Paying Agent may, at the expense of the Company, cause to be published once in
a newspaper of general circulation in the City of New York or mailed to each
Holder, notice that such Funds remain unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed balance of such Funds then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to the
Funds must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person and all liability
of the Trustee and Paying Agent with respect to such Funds shall cease.
SECTION 8.05 Reinstatement.
If the Trustee or Paying Agent is unable to apply any Funds
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 Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such Funds in accordance with Section 8.01; provided, however, that
if the Company has made any payment of principal, or premium, if any, and
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from Funds held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders.
The Company, when authorized by a Board Resolution, the
Guarantors and the Trustee, together, may amend or supplement this Indenture or
the Notes without the consent of any Holders:
(1) to cure any ambiguity, defect or inconsistency, so long
as such change does not, in the opinion of the Trustee, adversely
affect the rights of any of the Holders in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
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(4) to comply with requirements of the Commission in
order to effect or maintain the qualification of this
Indenture under the TIA;
(5) to make any other change that would provide any
additional benefit or rights to the Holders or that does not adversely
affect in any material respect the rights of any Noteholders
hereunder; or
(6) to provide for the issuance of the Exchange Notes,
which will be treated together with any outstanding Initial
Notes as a single issue of Notes;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate, each stating that such amendment or
supplement complies with the provisions of this Section 9.01.
SECTION 9.02 With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a
Board Resolution, the Guarantors and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in principal amount of
the then outstanding Notes may make all other modifications, waivers and
amendments of this Indenture or the Notes, except that, without the consent of
each Holder of Notes affected thereby, no amendment or waiver may, directly or
indirectly:
(1) reduce the amount of Notes whose Holders must
consent to an amendment;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Notes;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption or repurchase, or reduce the
redemption or repurchase price thereof;
(4) make any Notes payable in money other than that stated
in the Notes and this Indenture;
(5) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of principal
and interest on such Note on or after the due date thereof or to bring
suit to enforce such payment or permitting
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Holders of a majority in principal amount of the Notes to
waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control or make and consummate a Net
Proceeds Offer with respect to any Asset Sale that has been
consummated or modify any of the provisions or definitions with
respect thereto;
(7) modify or change any provision of this Indenture or the
related definitions affecting the subordination or ranking of the
Notes or any Guarantee in a manner which adversely affects the
Holders; or
(8) release any Guarantor from any of its obligations
under its Guarantee or this Indenture otherwise than in
accordance with the terms of this Indenture.
It shall not be necessary for the consent of the Holders
under this Section 9.02 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective (as provided in Section 9.04), the Company shall mail to
the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 9.03 Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or
the Notes shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note, even if notation of the consent is not made on
any Note. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to his Note or portion of his Note by notice
to the Trustee or the Company received before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such
consent) to the
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amendment, supplement or waiver (at which time such amendment, supplement or
waiver shall become effective).
The Company may, but shall not be obligated to, fix such
record date as it may select for the purpose of determining the Holders
entitled to consent to any amendment, supplement or waiver. If a record date is
fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
After an amendment, supplement or waiver becomes effective,
it shall bind every Holder, unless it makes a change described in any of
clauses (1) through (8) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Note who has consented to
it and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as a consenting Holder's Note; provided, however, that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
SECTION 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms. Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
SECTION 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article Nine;
provided, however, that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate each stating that
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the execution of any amendment, supplement or waiver authorized pursuant to
this Article Nine is authorized or permitted by this Indenture. Such Opinion of
Counsel shall not be an expense of the Trustee.
ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01 Notes Subordinated to Senior Debt.
Anything herein to the contrary notwithstanding, the Company,
for itself and its successors, and each Holder, by his or her acceptance of
Notes, agrees that the payment of all Obligations owing to the Holders in
respect of the Notes is subordinated, to the extent and in the manner provided
in this Article Ten, in right of payment to the prior payment in full in cash
or Cash Equivalents, or such payment duly provided for to the satisfaction of
the holders of Senior Debt, of all Obligations on Senior Debt, including
without limitation, the Company's obligations under the Credit Agreement.
This Article Ten shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Senior Debt, and such
provisions are made for the benefit of the holders of Senior Debt and such
holders are made obligees hereunder and any one or more of them may enforce
such provisions.
SECTION 10.02 Suspension of Payment When Senior Debt Is in
Default.
(a) Unless Section 10.03 shall be applicable, upon
(1) the occurrence and continuance of any default in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees (a "Payment Default") with respect to,
any Senior Debt and (2) receipt by the Trustee and the Company from a
Representative of written notice of such occurrence, then no payment (other
than payments previously made pursuant to Article Eight) or distribution of any
assets of the Company of any kind or character shall be made by or on behalf of
the Company or any other Person on its or their behalf on account of any
Obligations under the Notes or on account of the purchase, redemption or other
acquisition of Notes for cash or property or otherwise (except that Holders may
receive (i) shares of stock and any debt securities that are subordinated at
least to the same extent as the Notes to Senior Debt and any securities issued
in exchange for Senior Debt and (ii) payments made from the trusts described in
Section 8.01) and until such
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Payment Default shall have been cured or waived or shall have ceased to exist
or such Senior Debt as to which such Payment Default relates shall have been
discharged or paid in full in cash or Cash Equivalents, or such payment duly
provided for to the satisfaction of the holders of Senior Debt, after which the
Company shall resume making any and all required payments in respect of the
Notes, including any missed payments.
(b) Unless Section 10.03 shall be applicable, upon (1) the
occurrence and continuance of any event of default (other than a Payment
Default) with respect to any Designated Senior Debt (as such event of default
is defined in the instrument creating or evidencing such Designated Senior
Debt) permitting the holders of such Designated Senior Debt then outstanding
(or an agent or trustee on their behalf) to accelerate the maturity thereof (a
"Non-payment Default") and (2) the earlier of (i) receipt by the Trustee and
the Company from a Representative of written notice of such occurrence stating
that such notice is a "Payment Blockage Notice" pursuant to this Section 10.02
or (ii) if such Non-payment Default results from the acceleration of the Notes,
the date of such acceleration, no payment (other than payments previously made
pursuant to Article Eight) or distribution of any assets of the Company of any
kind or character shall be made by or on behalf of the Company or any other
Person on its or their behalf on account of any Obligations under the Notes or
on account of the purchase or redemption or other acquisition of Notes for cash
or property or otherwise (except that Holders may receive (i) shares of stock
and any debt securities that are subordinated at least to the same extent as
the Notes to Senior Debt and securities issued in exchange for Senior Debt and
(ii) payments made from the trusts described in Section 8.01) for a period (the
"Payment Blockage Period") commencing on the date of receipt by the Trustee of
the Payment Blockage Notice or the date of the acceleration referred to in
clause (ii) above, as the case may be, unless and until the earlier to occur of
the following events: (w) 180 days shall have elapsed since receipt of the
Payment Blockage Notice by the Trustee or the date of the acceleration of the
Notes, as the case may be (provided no Designated Senior Debt shall theretofore
have been accelerated), (x) such Non-payment Default shall have been cured or
waived or shall have ceased to exist, (y) such Designated Senior Debt shall
have been discharged or paid in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of such Designated
Senior Debt, or (z) such Payment Blockage Period shall have been terminated by
written notice to the Company or the Trustee from the Representative initiating
such Payment Blockage Period or the holders of at least a majority in principal
amount of such issue of Designated Senior Debt initiating such Payment Blockage
Period, after which, in the case of clause (w), (x), (y) or (z), the Company
shall resume making any and all required payments in respect of the Notes,
including any missed
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payments. Notwithstanding anything herein to the contrary, (x) in no event will
a Payment Blockage Period or successive Payment Blockage Periods with respect
to the same payment on the Notes extend beyond 180 days after delivery of the
Payment Blockage Notice and (y) only one such Payment Blockage Period may be
commenced within any 360 consecutive days. For all purposes of this Section
10.02(b), no event of default which existed or was continuing on the date of
the commencement of any Payment Blockage Period with respect to the Designated
Senior Debt of the Company initiating such Payment Blockage Period shall be, or
be made, the basis for the commencement of a second Payment Blockage Period by
the holders or by the Representative of such Designated Senior Debt whether or
not within a period of 360 consecutive days, unless such event of default shall
have been cured or waived for a period of not less than 90 consecutive days (it
being acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Payment Blockage Period that, in either case, would give rise to an event of
default pursuant to any provisions under which an event of default previously
existed or was continuing shall constitute a new event of default for this
purpose).
(c) In the event that, notwithstanding the foregoing, the
Company shall have made payment to the Trustee or directly to the Holder of any
Note prohibited by the foregoing provisions of this Section 10.02, then and in
such event such payment shall be segregated from other funds and held in trust
by the Trustee or such Holder or Paying Agent for the benefit of, and shall
immediately be paid over to, the holders of Senior Debt or to the
Representatives or as a court of competent jurisdiction shall direct.
SECTION 10.03 Notes Subordinated to Prior Payment of All Senior
Debt on Dissolution, Liquidation or Reorganization
of Company.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors or marshaling of assets of the Company or in a
bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary:
(a) the holders of all Senior Debt shall first be entitled to
receive payments in full in cash or Cash Equivalents, or such payment
duly provided for to the satisfaction of the holders of Senior Debt,
of all amounts payable under Senior Debt before the Holders will be
entitled
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to receive any payment or distribution of any kind or character is
made on account of any Obligations on the Notes or for the acquisition
of any of the Notes for cash or property or otherwise, and until all
Obligations with respect to the Senior Debt are paid in full in cash
or Cash Equivalents, or such payment provided for to the satisfaction
of the holders of Senior Debt, any distribution to which the Holders
would be entitled shall be made to the holders of Senior Debt;
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be
entitled except for the provisions of this Article Ten, shall be paid
by the liquidating trustee or agent or other Person making such a
payment or distribution, directly to the holders of Senior Debt or
their representatives, ratably according to the respective amounts of
Senior Debt remaining unpaid held or represented by each, until all
Senior Debt remaining unpaid shall have been paid in full in cash or
Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Senior Debt, after giving effect to any
concurrent payment or distribution to the holders of such Senior Debt;
and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether such payment shall be in cash, property or
securities, and the Company shall have made payment to the Trustee or
directly to the Holders or any Paying Agent on account of any
obligations under the Notes before all Senior Debt is paid in full in
cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Senior Debt, such payment or
distribution (subject to the provisions of Sections 10.06 and 10.07)
shall be received, segregated from other funds, and held in trust by
the Trustee or such Holder or Paying Agent for the benefit of, and
shall immediately be paid over by the Trustee (if the notice required
by Section 10.06 has been received by the Trustee) or by the Holder
to, the holders of Senior Debt or their representatives, ratably
according to the respective amounts of Senior Debt held or represented
by each, until all Senior Debt remaining unpaid shall have been paid
in full in cash or Cash Equivalents, or such payment duly provided for
to the satisfaction of the holders of Senior Debt, after giving effect
to any concurrent payment or distribution to or for the holders of
Senior Debt.
(d) The consolidation of the Company with, or the merger
of the Company with or into, another Person or the liquidation
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or dissolution of the Company following the conveyance, transfer or
lease of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Five
shall not be deemed a liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors or marshaling
of assets of the Company, as the case may be, for the purposes of this
Article Ten; provided, however, that the Person formed by such
consolidation or the surviving entity of such merger or the Person
which acquires by conveyance, transfer or lease such properties and
assets substantially as an entirety, as the case may be, shall, as a
part of such consolidation, merger, conveyance, transfer or lease,
comply with the conditions set forth in such Article Five.
The Company shall give prompt notice to the Trustee prior to
any liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets.
SECTION 10.04 Holders To Be Subrogated to Rights of Holders of
Senior Debt.
Subject to the payment in full in cash or Cash Equivalents,
or such payment duly provided for to the satisfaction of the holders of Senior
Debt, of all Senior Debt, the Holders of Notes shall be subrogated to the
rights of the holders of Senior Debt to receive payments or distributions of
assets of the Company applicable to the Senior Debt until all amounts owing on
the Notes shall be paid in full in cash or Cash Equivalents, and for the
purpose of such subrogation no payments or distributions to the holders of
Senior Debt by or on behalf of the Company, or by or on behalf of the Holders
by virtue of this Article Ten, which otherwise would have been made to the
Holders shall, as between the Company and the Holders, be deemed to be payment
by the Company to or on account of the Senior Debt, it being understood that
the provisions of this Article Ten are and are intended solely for the purpose
of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Debt, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Ten shall
have been applied, pursuant to the provisions of this Article Ten, to the
payment of all amounts payable under the Senior Debt, then the Holders shall be
entitled to receive from the holders of such Senior Debt any such payments or
distributions received by such holders of Senior Debt in excess of the amount
sufficient to pay all amounts payable under or in respect of the Senior Debt in
full in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Senior Debt.
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Each Holder by purchasing or accepting a Note waives any and
all notice of the creation, modification, renewal, extension or accrual of any
Senior Debt of the Company and notice of or proof of reliance by any holder or
owner of Senior Debt of the Company upon this Article Ten and the Senior Debt
of the Company shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Article Ten, and all dealings between the
Company and the holders and owners of the Senior Debt of the Company shall be
deemed to have been consummated in reliance upon this Article Ten.
SECTION 10.05 Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the Notes
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Ten, of the
holders of Senior Debt in respect of cash, property or Notes of the Company
received upon the exercise of any such remedy. Upon any payment or distribution
of assets or securities of the Company referred to in this Article Ten, the
Trustee, subject to the provisions of Sections 7.01 and 7.02, and the Holders
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any liquidation, dissolution, winding-up or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee or agent or other Person making any
payment or distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Ten. Nothing in this Article Ten shall apply to the claims of, or payments to,
the Trustee under or pursuant to Section 7.07. The Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
or itself to be a holder of any Senior Debt (or a trustee on behalf of, or
other representative of, such holder) to establish that such notice has been
given by a holder of such Senior Debt or a trustee or representative on behalf
of any such holder.
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In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 10.06 Trustee Entitled To Assume Payments Not Prohibited
in Absence of Notice.
The Trustee shall not at any time be charged with knowledge
of the existence of any facts that would prohibit the making of any payment to
or by the Trustee unless and until the Trustee or any Paying Agent shall have
received written notice thereof from the Company or from one or more holders of
Senior Debt or from any Representative therefor and, prior to the receipt of
any such notice, the Trustee, subject to the provisions of Sections 7.01 and
7.02, shall be entitled in all respects conclusively to assume that no such
fact exists.
SECTION 10.07 Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Section 8.01 and 8.02
shall be for the sole benefit of the Holders of the Notes and, to the extent
allocated for the payment of Notes, shall not be subject to the subordination
provisions of this Article Ten. Otherwise, any deposit of assets or securities
by or on behalf of the Company with the Trustee or any Paying Agent (whether or
not in trust) for the payment of principal of or interest on any Notes shall be
subject to the provisions of this Article Ten; provided, however, that if prior
to the third Business Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including,
without limitation, the payment of either principal of or interest on any Note)
the Trustee or such Paying Agent shall not have received with respect to such
assets the notice provided for in Section 10.06, then the Trustee or such
Paying Agent shall have full power and authority to receive such assets and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary received by it on or after such date.
The foregoing shall not apply to the Paying Agent if the Company or any
Subsidiary or Affiliate of the Company is acting as Paying Agent. Nothing
contained in this Section 10.07 shall
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limit the right of the holders of Senior Debt to recover payments as
contemplated by this Article Ten.
SECTION 10.08 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Debt to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.08, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Debt, do any one or more of the following: (1) change the manner, place, terms
or time of payment of, or renew or alter, Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(2) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (3) release any Person liable in
any manner for the collection or payment of Senior Debt; and (4) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 10.09 Holders Authorize Trustee To Effectuate
Subordination of Notes.
Each Holder of the Notes by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article Ten, and appoints the Trustee such Holder's
attorney-in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors or marshaling of assets of the Company tending towards liquidation or
reorganization of the business and assets of the Company, the immediate filing
of a claim for the unpaid balance of such Holder's Notes in the form required
in said proceedings and cause said claim to be approved. If the Trustee does
not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then any of the holders of the Senior Debt or their
Representative is hereby authorized to file an appropriate claim
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for and on behalf of the Holders of said Notes. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Senior Debt or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Senior Debt or their Representative to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 10.10 Rights of Trustee To Hold Senior Debt.
The Trustee shall be entitled to all of the rights set forth
in this Article Ten in respect of any Senior Debt at any time held by it to the
same extent as any other holder of Senior Debt, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11 No Suspension of Remedies.
The failure to make a payment on account of principal of or
interest on the Notes by reason of any provision of this Article Ten shall not
be construed as preventing the occurrence of a Default or an Event of Default
under Section 6.01.
Nothing contained in this Article Ten shall limit the right
of the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article Six or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any,
under this Article Ten of the holders, from time to time, of Senior Debt.
SECTION 10.12 No Fiduciary Duty of Trustee to Holder of Senior
Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt, and it undertakes to perform or observe such of its
covenants and obligations as are specifically set forth in this Article Ten,
and no implied covenants or obligations with respect to the Senior Debt shall
be read into this indenture against the Trustee. The Trustee shall not be
liable to any such holders (other than for its willful misconduct or gross
negligence) if it shall pay over or deliver to the Holders of Notes or the
Company or any other Person, money or assets in compliance with the terms of
this Indenture. Nothing in this Section 10.12 shall affect the obligation of
any Person other than the Trustee to hold such payment for the benefit of, and
to pay such payment over to, the holders of Senior Debt or their
Representative.
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ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01 Unconditional Guarantee.
Subject to the provisions of this Article Eleven, each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably
guarantees, on a senior subordinated basis (such guarantees to be referred to
herein as the "Guarantee") to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company or any other Guarantors to the Holders or the
Trustee hereunder or thereunder, that: (a) the principal of, premium, if any,
and interest on the Notes (and any Additional Interest payable thereon) shall
be duly and punctually paid in full when due, whether at maturity, upon
redemption at the option of Holders pursuant to the provisions of the Notes
relating thereto, by acceleration or otherwise, and interest on the overdue
principal and (to the extent permitted by law) interest, if any, on the Notes
and all other obligations of the Company or the Guarantors to the Holders or
the Trustee hereunder or thereunder (including amounts due the Trustee under
Section 7.07 hereof) and all other obligations shall be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, or failing performance of any other obligation of the Company to
the Holders under this Indenture or under the Notes, for whatever reason, each
Guarantor shall be obligated to pay, or to perform or cause the performance of,
the same immediately. An Event of Default under this Indenture or the Notes
shall constitute an event of default under this Guarantee, and shall entitle
the Holders of Notes to accelerate the obligations of the Guarantors hereunder
in the same manner and to the same extent as the obligations of the Company.
Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or
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equitable discharge or defense of a Guarantor. Each of the Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that its Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes, this Indenture and this Guarantee. This Guarantee is a guarantee of
payment and not of collection. If any Holder or the Trustee is required by any
court or otherwise to return to the Company or to any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or such Guarantor, any amount paid by the Company or such Guarantor
to the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
further agrees that, as between it, on the one hand, and the Holders of Notes
and the Trustee, on the other hand, (a) subject to this Article Eleven, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (b) in the event of any acceleration
of such obligations as provided in Article Six hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Guarantee.
No stockholder, officer, director, employee or incorporator,
past, present or future, or any Guarantor, as such, shall have any personal
liability under this Guarantee by reason of his, her or its status as such
stockholder, officer, director, employee or incorporator.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in an
amount pro rata, based on the net assets of each Guarantor, determined in
accordance with GAAP.
SECTION 11.02 Limitations on Guarantees.
The obligations of each Guarantor under its Guarantee are
limited to the maximum amount which, after giving effect to all other
contingent and tax liabilities of such Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under this Indenture, will result in
the obligations of such Guarantor under the Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law.
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SECTION 11.03 Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 11.01,
each Guarantor hereby agrees that a notation of such Guarantee, substantially
in the form of Exhibit E hereto, shall be endorsed on each Note authenticated
and delivered by the Trustee. Such Guarantee shall be executed on behalf of
each Guarantor by either manual or facsimile signature of two Officers of each
Guarantor, each of whom, in each case, shall have been duly authorized to so
execute by all requisite corporate action. 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 11.01 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 each Guarantor.
SECTION 11.04 Release of a Guarantor.
(a) If no Default or Event of Default exists or would exist
under this Indenture, upon the sale or disposition of all of the Capital Stock
of a Guarantor by the Company, in a transaction or series of related
transactions that either (i) does not constitute an Asset Sale or (ii)
constitutes an Asset Sale the Net Cash Proceeds of which are applied in
accordance with Section 4.15, or upon the consolidation or merger of a
Guarantor with or into any Person in compliance with Article Five (in each
case, other than to the Company or an Affiliate of the Company), or if any
Guarantor is dissolved or liquidated in accordance with this Indenture, or if a
Guarantor is designated an Unrestricted Subsidiary, such Guarantor's Guarantee
will be automatically discharged and released, and such Guarantor and each
Subsidiary of such Guarantor that is also a Guarantor shall be deemed
automatically discharged and released from all obligations under this Article
Eleven without any further action required on the part of the Trustee or any
Holder. Any Guarantor not so released or the entity surviving such Guarantor,
as applicable, shall remain or be liable under its Guarantee as provided in
this Article Eleven.
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(b) The Trustee shall deliver an appropriate instrument
evidencing the release of a Guarantor upon receipt of a request by the Company
or such Guarantor accompanied by an Officers' Certificate and an Opinion of
Counsel certifying as to the compliance with this Section 11.04; provided,
however, that the legal counsel delivering such Opinion of Counsel may rely as
to matters of fact on one or more Officers' Certificates of the Company.
(c) The Trustee shall execute any documents reasonably
requested by the Company or a Guarantor in order to evidence the release of
such Guarantor from its obligations under its Guarantee endorsed on the Notes
and under this Article Eleven.
(d) Except as set forth in Articles Four and Five and this
Section 11.04, nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
SECTION 11.05 Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are
discharged and paid in full, each Guarantor hereby irrevocably waives and
agrees not to exercise any claim or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of the Company's obligations under the Notes or this Indenture
and such Guarantor's obligations under this Guarantee and this Indenture, in
any such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders against the Company, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Guarantor in violation of the
preceding sentence and any amounts owing to the Trustee or the Holders of Notes
under the Notes, this Indenture, or any other document or instrument delivered
under or in connection with such agreements or instruments, shall not have been
paid in full, such amount shall have been deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Trustee
or the Holders and shall forthwith be paid to the Trustee for the benefit of
itself or such Holders to be credited and applied to the obligations in favor
of the Trustee or the Holders, as the case may be, whether matured or
unmatured, in
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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
11.05 is knowingly made in contemplation of such benefits.
SECTION 11.06 Immediate Payment.
Each Guarantor agrees to make immediate payment to the
Trustee on behalf of the Holders of all Obligations owing or payable to the
respective Holders upon receipt of a demand for payment therefor by the Trustee
to such Guarantor in writing.
SECTION 11.07 No Set-Off.
Each payment to be made by a Guarantor hereunder in respect
of the Obligations shall be payable in the currency or currencies in which such
Obligations are denominated, and shall be made without set-off, counterclaim,
reduction or diminution of any kind or nature.
SECTION 11.08 Obligations Absolute.
The obligations of each Guarantor hereunder are and shall be
absolute and unconditional and any monies or amounts expressed to be owing or
payable by each Guarantor hereunder which may not be recoverable from such
Guarantor on the basis of a Guarantee shall be recoverable from such Guarantor
as a primary obligor and principal debtor in respect thereof.
SECTION 11.09 Obligations Continuing.
The obligations of each Guarantor hereunder shall be
continuing and shall remain in full force and effect until all the obligations
have been paid and satisfied in full. Each Guarantor agrees with the Trustee
that it will from time to time deliver to the Trustee suitable acknowledgments
of this continued liability hereunder and under any other instrument or
instruments in such form as counsel to the Trustee may advise and as will
prevent any action brought against it in respect of any default hereunder being
barred by any statute of limitations now or hereafter in force and, in the
event of the failure of a Guarantor so to do, it hereby irrevocably appoints
the Trustee the attorney and agent of such Guarantor to make, execute and
deliver such written acknowledgment or acknowledgments or other instruments as
may from time to time become necessary or advisable, in the judgment of the
Trustee on the advice of counsel, to fully maintain and keep in force the
liability of such Guarantor hereunder.
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SECTION 11.10 Obligations Not Reduced.
The obligations of each Guarantor hereunder shall not be
satisfied, reduced or discharged solely by the payment of such principal,
premium, if any, interest, fees and other monies or amounts as may at any time
prior to discharge of this Indenture pursuant to Article Eight be or become
owing or payable under or by virtue of or otherwise in connection with the
Notes or this Indenture.
SECTION 11.11 Obligations Reinstated.
The obligations of each Guarantor hereunder shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of any Guarantor
hereunder (whether such payment shall have been made by or on behalf of the
Company or by or on behalf of a Guarantor) is rescinded or reclaimed from any
of the Holders upon the insolvency, bankruptcy, liquidation or reorganization
of the Company or any Guarantor or otherwise, all as though such payment had
not been made. If demand for, or acceleration of the time for, payment by the
Company is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Company, all such Indebtedness otherwise subject to
demand for payment or acceleration shall nonetheless be payable by each
Guarantor as provided herein.
SECTION 11.12 Obligations Not Affected.
The obligations of each Guarantor hereunder shall not be
affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by any Guarantor or any of
the Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against any Guarantor hereunder or might operate to release
or otherwise exonerate any Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise, including, without limitation:
(a) any limitation of status or power, disability, incapacity
or other circumstance relating to the Company or any other Person,
including any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding-up or other proceeding
involving or affecting the Company or any other Person;
(b) any irregularity, defect, unenforceability or
invalidity in respect of any indebtedness or other obligation
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of the Company or any other Person under this Indenture, the
Notes or any other document or instrument;
(c) any failure of the Company, whether or not without fault
on its part, to perform or comply with any of the provisions of this
Indenture or the Notes, or to give notice thereof to a Guarantor;
(d) the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy from or
against the Company or any other Person or their respective assets or
the release or discharge of any such right or remedy;
(e) the granting of time, renewals, extensions,
compromises, concessions, waivers, releases, discharges and
other indulgences to the Company or any other Person;
(f) any change in the time, manner or place of payment of, or
in any other term of, any of the Notes, or any other amendment,
variation, supplement, replacement or waiver of, or any consent to
departure from, any of the Notes or this Indenture, including, without
limitation, any increase or decrease in the principal amount of or
premium, if any, or interest on any of the Notes;
(g) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the
Company or a Guarantor;
(h) any merger or amalgamation of the Company or a
Guarantor with any Person or Persons;
(i) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any present or future
action of any governmental authority or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary, reduce
or otherwise affect, any of the Obligations or the obligations of a
Guarantor under its Guarantee; and
(j) any other circumstance, including release of the
Guarantor pursuant to Section 11.04 (other than by complete,
irrevocable payment) that might otherwise constitute a legal or
equitable discharge or defense of the Company under this Indenture or
the Notes or of a Guarantor in respect of its Guarantee hereunder.
SECTION 11.13 Waiver.
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Without in any way limiting the provisions of Section 11.01
hereof, each Guarantor hereby waives notice of acceptance hereof, notice of any
liability of any Guarantor hereunder, notice or proof of reliance by the
Holders upon the obligations of any Guarantor hereunder, and diligence,
presentment, demand for payment on the Company, protest, notice of dishonor or
non-payment of any of the Obligations, or other notice or formalities to the
Company or any Guarantor of any kind whatsoever.
SECTION 11.14 No Obligation To Take Action Against the Company.
Neither the Trustee nor any other Person shall have any
obligation to enforce or exhaust any rights or remedies or to take any other
steps under any security for the Obligations or against the Company or any
other Person or any property of the Company or any other Person before the
Trustee is entitled to demand payment and performance by any or all Guarantors
of their liabilities and obligations under their Guarantees or under this
Indenture.
SECTION 11.15 Dealing with the Company and Others.
The Holders, without releasing, discharging, limiting or
otherwise affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other
indulgences to the Company or any other Person;
(b) take or abstain from taking security or
collateral from the Company or from perfecting security
or collateral of the Company;
(c) accept compromises or arrangements from the
Company;
(d) apply all monies at any time received from the
Company or from any security upon such part of the
Obligations as the Holders may see fit or change any such
application in whole or in part from time to time as the
Holders may see fit; and
(e) otherwise deal with, or waive or modify their
right to deal with, the Company and all other Persons and any
security as the Holders or the Trustee may see fit.
SECTION 11.16 Default and Enforcement.
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If any Guarantor fails to pay in accordance with Section
11.06 hereof, the Trustee may proceed in its name as trustee hereunder in the
enforcement of the Guarantee of any such Guarantor and such Guarantor's
obligations thereunder and hereunder by any remedy provided by law, whether by
legal proceedings or otherwise, and to recover from such Guarantor the
obligations.
SECTION 11.17 Amendment, Etc.
No amendment, modification or waiver of any provision of this
Indenture relating to any Guarantor or consent to any departure by any
Guarantor or any other Person from any such provision will in any event be
effective unless it is signed by such Guarantor and the Trustee.
SECTION 11.18 Acknowledgment.
Each Guarantor hereby acknowledges communication of the terms
of this Indenture and the Notes and consents to and approves of the same.
SECTION 11.19 Costs and Expenses.
Each Guarantor shall pay on demand by the Trustee any and all
costs, fees and expenses (including, without limitation, legal fees on a
solicitor and client basis) incurred by the Trustee, its agents, advisors and
counsel or any of the Holders in enforcing any of their rights under any
Guarantee.
SECTION 11.20 No Merger or Waiver; Cumulative Remedies.
No Guarantee shall operate by way of merger of any of the
obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture. No failure to exercise and no delay in exercising,
on the part of the Trustee or the Holders, any right, remedy, power or
privilege hereunder or under this Indenture or the Notes, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder or under this Indenture or the Notes preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges in the
Guarantee and under this Indenture, the Notes and any other document or
instrument between a Guarantor and/or the Company and the Trustee are
cumulative and not exclusive of any rights, remedies, powers and privilege
provided by law.
SECTION 11.21 Survival of Obligations.
Without prejudice to the survival of any of the other
obligations of each Guarantor hereunder, the obligations of each
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Guarantor under Section 11.01 shall survive the payment in full of the
Obligations and shall be enforceable against such Guarantor without regard to
and without giving effect to any defense, right of offset or counterclaim
available to or which may be asserted by the Company or any Guarantor.
SECTION 11.22 Guarantee in Addition to Other Obligations.
The obligations of each Guarantor under its Guarantee and
this Indenture are in addition to and not in substitution for any other
obligations to the Trustee or to any of the Holders in relation to this
Indenture or the Notes and any guarantees or security at any time held by or
for the benefit of any of them.
SECTION 11.23 Severability.
Any provision of this Article Eleven which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and
purpose of this Indenture and this Article Eleven.
SECTION 11.24 Successors and Assigns.
Each Guarantee shall be binding upon and inure to the benefit
of each Guarantor and the Trustee and the other Holders and their respective
successors and permitted assigns, except that no Guarantor may assign any of
its obligations hereunder or thereunder.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01 Guarantee Obligations Subordinated to Guarantor
Senior Debt.
Anything herein to the contrary notwithstanding, each of the
Guarantors, for itself and its successors, and each Holder, by his or her
acceptance of Guarantees, agrees that the payment of all Obligations owing to
the Holders in respect of its Guarantee (collectively, as to any Guarantor, its
"Guarantee Obligations") is subordinated, to the extent and in the manner
provided in this Article Twelve, in right of payment to the prior payment in
full in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Debt, of all Obligations on
Guarantor Senior Debt of such Guarantor, including
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without limitation, the Guarantors' obligations under the Credit
Agreement.
This Article Twelve shall constitute a continuing offer to
all Persons who become holders of, or continue to hold, Guarantor Senior Debt,
and such provisions are made for the benefit of the holders of Guarantor Senior
Debt and such holders are made obligees hereunder and any one or more of them
may enforce such provisions.
SECTION 12.02 Suspension of Guarantee Obligations When Guarantor
Senior Debt Is In Default.
(a) Unless Section 12.03 shall be applicable, upon (1) the
occurrence and continuance of a Payment Default with respect to any Guarantor
Senior Debt and (2) receipt by the Trustee, the Company and such Guarantor from
a Representative of written notice of such occurrence, then no payment (other
than payments previously made pursuant to Article Eight) or distribution of any
assets of such Guarantor of any kind or character shall be made by or on behalf
of such Guarantor or any other Person on its behalf on account of any Guarantee
Obligations or on account of the purchase, redemption or other acquisition of
Notes for cash or property or otherwise (except that Holders may receive (i)
shares of stock and any debt securities that are subordinated at least to the
same extent as the Guarantees to Guarantor Senior Debt and any securities
issued in exchange for Guarantor Senior Debt and (ii) payments made from the
trusts described in Section 8.01) and until such Payment Default shall have
been cured or waived or shall have ceased to exist or such Guarantor Senior
Debt as to which Payment Default relates shall have been discharged or paid in
full in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Debt, after which such
Guarantor shall resume making any and all required payments in respect of its
Guarantee Obligations, including any missed payments.
(b) Unless Section 12.03 shall be applicable, upon (1) the
occurrence and continuance of a Non-Payment Default with respect to any
Designated Senior Debt of a Guarantor and (2) the earlier of (i) receipt by the
Trustee, the Company and such Guarantor from a Representative of written notice
of such occurrence stating that such notice is a "Guarantor Payment Blockage
Notice" pursuant to this Section 12.02 or (ii) if such Non-payment Default
results from the acceleration of the Notes, the date of the acceleration of the
Notes, no payment (other than payments previously made pursuant to Article
Eight) or distribution of any assets of such Guarantor of any kind or character
shall be made by on or behalf of such Guarantor or any other Person on its or
their behalf on account of any Guarantee Obligations or on
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account of the purchase, redemption or other acquisition of Notes for cash or
property or otherwise (except that Holders may receive (i) shares of stock and
any debt securities that are subordinated at least to the same extent as the
Guarantees to Guarantor Senior Debt and securities issued in exchange for
Guarantor Senior Debt and (ii) payments made from the trusts described in
Section 8.01) for a period (the "Guarantor Payment Blockage Period") commencing
on the date of receipt by the Trustee of the Guarantor Payment Blockage Notice
or the date of the acceleration referred to in clause (ii) above, as the case
may be, unless and until the earlier to occur of the following events: (w) 180
days shall have elapsed since receipt of the Guarantor Payment Blockage Notice
by the Trustee or the date of the acceleration of the Notes, as the case may be
(provided no Designated Senior Debt of a Guarantor shall theretofore have been
accelerated), (x) such Non-payment Default shall have been cured or waived or
shall have ceased to exist, (y) such Designated Senior Debt of a Guarantor
shall have been discharged or paid in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of such Designated
Senior Debt of a Guarantor or (z) such Guarantor Payment Blockage Period shall
have been terminated by written notice to the Company or the Trustee from the
Representative initiating such Guarantor Payment Blockage Period or the holders
of at least a majority in principal amount of such issue of Designated Senior
Debt of a Guarantor initiating such Guarantor Blockage Period, after which, in
the case of clause (w), (x), (y) or (z), such Guarantor shall resume making any
and all required payments in respect of its Guarantee Obligations, including
any missed payments. Notwithstanding anything herein to the contrary, (x) in no
event will a Guarantor Payment Blockage Period or successive Guarantor Payment
Blockage Periods with respect to the same payment on a Guarantee extend beyond
180 days after delivery of the Guarantor Payment Blockage Notice and (y) only
one such Guarantor Payment Blockage Period may be commenced within any 360
consecutive days. For all purposes of this Section 12.02(b), no event of
default which existed or was continuing on the date of the commencement of any
Guarantor Payment Blockage Period with respect to the Designated Senior Debt of
a Guarantor initiating such Guarantor Payment Blockage Period shall be, or be
made, the basis for the commencement of a second Guarantor Payment Blockage
Period by the holders or by the Representative of such Designated Senior Debt
of a Guarantor whether or not within a period of 360 consecutive days, unless
such event of default shall have been cured or waived for a period of not less
than 90 consecutive days (it being acknowledged that any subsequent action, or
any breach of any financial covenants for a period commencing after the date of
commencement of such Guarantor Payment Blockage Period that, in either case,
would give rise to an event of default pursuant to any provisions under which
an event of default previously existed or
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was continuing shall constitute a new event of default for this
purpose).
(c) In the event that, notwithstanding the foregoing, a
Guarantor shall have made payment to the Trustee or directly to the Holder of
any Note prohibited by the foregoing provisions of this Section 12.02, then and
in such event such payment shall be segregated from other funds and held in
trust by the Trustee or such Holder or Paying Agent for the benefit of, and
shall immediately be paid over to, the holders of Designated Senior Debt of a
Guarantor or to the Representatives or as a court of competent jurisdiction
shall direct.
SECTION 12.03 Guarantee Obligations Subordinated to Prior Payment
of All Guarantor Senior Debt on Dissolution,
Liquidation or Reorganization of Such Subsidiary
Guarantor.
Upon any payment or distribution of assets of any Guarantor
of any kind or character, whether in cash, property or securities to creditors
upon any liquidation, dissolution, winding up, reorganization, assignment for
the benefit of creditors or marshaling of assets of such Guarantor, whether
voluntary or involuntary, or in a bankruptcy, reorganization, insolvency,
receivership or other similar proceeding relating to any Guarantor or its
property, whether voluntary or involuntary (but excluding any liquidation or
dissolution of a Guarantor into the Company or into another Guarantor):
(a) the holders of all Guarantor Senior Debt of such
Guarantor shall first be entitled to receive payments in full in cash
or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Debt, of all amounts
payable under Guarantor Senior Debt before the Holders will be
entitled to receive any payment or distribution of any kind or
character on account of the Guarantee Obligations of such Guarantor,
and until all Obligations with respect to the Guarantor Senior Debt
are paid in full in cash or Cash Equivalents, or such payment duly
provided for to the satisfaction of the holders of Guarantor Senior
Debt, any distribution to which the Holders would be entitled shall be
made to the holders of Guarantor Senior Debt of such Guarantor;
(b) any payment or distribution of assets of such Guarantor
of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be
entitled except for the provisions of this Article Twelve shall be
paid by the liquidating trustee or agent or other Person making such a
payment or
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distribution, directly to the holders of Guarantor Senior Debt of such
Guarantor or their representatives, ratably according to the
respective amounts of such Guarantor Senior Debt remaining unpaid held
or represented by each, until all such Guarantor Senior Debt remaining
unpaid shall have been paid in full in cash or Cash Equivalents, or
such payment duly provided for to the satisfaction of the holders of
Guarantor Senior Debt, after giving effect to any concurrent payment
or distribution to the holders of such Guarantor Senior Debt;
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of such Guarantor of any kind or
character, whether such payment shall be in cash, property or
securities, and such Guarantor shall have made payment to the Trustee
or directly to the Holders or any Paying Agent in respect of payment
of the Guarantees before all Guarantor Senior Debt of such Guarantor
is paid in full in cash or Cash Equivalents, or such payment duly
provided for to the satisfaction of the holders of Guarantor Senior
Debt, such payment or distribution (subject to the provisions of
Sections 12.06 and 12.07) shall be received, segregated from other
funds, and held in trust by the Trustee or such Holder or Paying Agent
for the benefit of, and shall immediately be paid over by the Trustee
(if the notice required by Section 12.06 has been received by the
Trustee) or by the Holder to, the holders of such Guarantor Senior
Debt or their representatives, ratably according to the respective
amounts of such Guarantor Senior Debt held or represented by each,
until all such Guarantor Senior Debt remaining unpaid shall have been
paid in full in cash or Cash Equivalents, or such payment duly
provided for to the satisfaction of the holders of Guarantor Senior
Debt, after giving effect to any concurrent payment or distribution to
the holders of Guarantor Senior Debt.
Each Guarantor shall give prompt notice to the Trustee prior
to any liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets.
SECTION 12.04 Holders of Guarantee Obligations To Be Subrogated
to Rights of Holders of Guarantor Senior Debt.
Subject to the payment in full in cash or Cash Equivalents,
or such payment duly provided for to the satisfaction of the holders of
Guarantor Senior Debt, of all Guarantor Senior Debt, the Holders of Guarantee
Obligations of a Guarantor shall be subrogated to the rights of the holders of
Guarantor Senior Debt of such Guarantor to receive payments or distributions of
assets of such Guarantor applicable to such Guarantor Senior Debt until all
amounts owing on or in respect of the Guarantee Obligations shall
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be paid in full in cash or Cash Equivalents, and for the purpose of such
subrogation no payments or distributions to the holders of such Guarantor
Senior Debt by or on behalf of such Guarantor, or by or on behalf of the
Holders by virtue of this Article Twelve, which otherwise would have been made
to the Holders shall, as between such Guarantor and the Holders, be deemed to
be payment by such Guarantor to or on account of such Guarantor Senior Debt, it
being understood that the provisions of this Article Twelve are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of such Guarantor Senior Debt, on the other
hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Twelve
shall have been applied, pursuant to the provisions of this Article Twelve, to
the payment of all amounts payable under such Guarantor Senior Debt, then the
Holders shall be entitled to receive from the holders of such Guarantor Senior
Debt any such payments or distributions received by such holders of such
Guarantor Senior Debt in excess of the amount sufficient to pay all amounts
payable under or in respect of such Guarantor Senior Debt in full in cash or
Cash Equivalents, or such payment duly provided for to the satisfaction of the
holders of Guarantor Senior Debt.
Each Holder by purchasing or accepting a Note waives any and
all notice of the creation, modification, renewal, extension or accrual of any
Guarantor Senior Debt of the Guarantors and notice of or proof of reliance by
any holder or owner of Guarantor Senior Debt of the Guarantors upon this
Article Twelve and the Guarantor Senior Debt of the Guarantors shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Article Twelve, and all dealings between the Guarantors and the
holders and owners of the Guarantor Senior Debt of the Guarantors shall be
deemed to have been consummated in reliance upon this Article Twelve.
SECTION 12.05 Obligations of the Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as between the
Guarantors and the Holders, the obligation of the Guarantors, which is absolute
and unconditional, to pay to the Holders all amounts due and payable under the
Guarantees as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantors other than the holders of the Guarantor
Senior Debt, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
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Twelve, of the holders of Guarantor Senior Debt in respect of cash, property or
securities of the Guarantors received upon the exercise of any such remedy.
Upon any payment or distribution of assets of any Guarantor referred to in this
Article Twelve, the Trustee, subject to the provisions of Sections 7.01 and
7.02, and the Holders shall be entitled to rely upon any order or decree made
hy any court of competent jurisdiction in which any liquidation, dissolution,
winding up or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee or agent or other Person
making any payment or distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Debt and other Indebtedness of
any Guarantor, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Twelve. Nothing in this Article Twelve shall apply to, the claims of,
or payments to, the Trustee under or pursuant to Section 7.07. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Guarantor Senior Debt (or
a trustee on behalf of, or other representative of, such holder) to establish
that such notice has been given by a holder of such Guarantor Senior Debt or a
trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Guarantor Senior
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Twelve, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
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SECTION 12.06 Trustee Entitled To Assume Payments Not Prohibited
in Absence of Notice.
The Trustee shall not at any time be charged with knowledge
of the existence of any facts that would prohibit the making of any payment to
or by the Trustee unless and until the Trustee or any Paying Agent shall have
received notice thereof from the Company or any Guarantor or from one or more
holders of Guarantor Senior Debt or from any Representative therefor and, prior
to the receipt of any such notice, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, shall be entitled in all respects conclusively to
assume that no such fact exists.
SECTION 12.07 Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Sections 8.01 and
8.02 shall be for the sole benefit of Holders of the Notes and, to the extent
allocated for the payment of Notes, shall not be subject to the subordination
provisions of this Article Twelve. Otherwise, any deposit of assets or
securities by or on behalf of a Guarantor with the Trustee or any Paying Agent
(whether or not in trust) for payment of the Guarantees shall be subject to the
provisions of this Article Twelve; provided, however, that if prior to the
third Business Day preceding the date on which by the terms of this Indenture
any such assets may become distributable for any purpose (including, without
limitation, the payment of either principal of or interest on any Note) the
Trustee or such Paying Agent shall not have received with respect to such
assets the notice provided for in Section 12.06, then the Trustee or such
Paying Agent shall have full power and authority to receive such assets and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary received by it on or after such date.
The foregoing shall not apply to the Paying Agent if the Company or any
Subsidiary or Affiliate of the Company is acting as Paying Agent. Nothing
contained in this Section 12.07 shall limit the right of the holders of
Guarantor Senior Debt to recover payments as contemplated by this Article
Twelve.
SECTION 12.08 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor
Senior Debt to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, by any such holder, or by any
non-compliance by any Guarantor with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
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(b) Without limiting the generality of subsection (a) of this
Section 12.08, the holders of Guarantor Senior Debt may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the Notes
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Notes to the holders
of Guarantor Senior Debt, do any one or more of the following: (1) change the
manner, place, terms or time of payment of, or renew or alter, Guarantor Senior
Debt or any instrument evidencing the same or any agreement under which
Guarantor Senior Debt is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Guarantor
Senior Debt; (3) release any Person liable in any manner for the collection or
payment of Guarantor Senior Debt; and (4) exercise or refrain from exercising
any rights against the Guarantors and any other Person.
SECTION 12.09 Holders Authorize Trustee To Effectuate
Subordination of Guarantee Obligations.
Each Holder of the Guarantee Obligations by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effect the subordination
provisions contained in this Article Twelve, and appoints the Trustee his
attorney-in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors or marshaling of assets of any Guarantor tending towards liquidation
or reorganization of the business and assets of any Guarantor, the immediate
filing of a claim for the unpaid balance under its or his Guarantee Obligations
in the form required in said proceedings and cause said claim to be approved.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then any of the holders of the Guarantor Senior
Debt or their Representative is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Guarantee Obligations. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Guarantor
Senior Debt or their Representative to authorize or consent to or accept or
adopt on behalf of any holder of Guarantee Obligations any plan of
reorganization, arrangement, adjustment or composition affecting the Guarantee
Obligations or the rights of any Holder thereof, or to authorize the Trustee or
the holders of Guarantor Senior Debt or their Representative to vote in respect
of the claim of any holder of Guarantee Obligations in any such proceeding.
SECTION 12.10 Right of Trustee To Hold Guarantor Senior
Indebtedness.
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The Trustee shall be entitled to all of the rights set forth
in this Article Twelve in respect of any Guarantor Senior Debt at any time held
by it to the same extent as any other holder of Guarantor Senior Debt, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
SECTION 12.11 No Suspension of Remedies.
The failure to make a payment in respect of the Guarantees by
reason of any provision of this Article Twelve shall not be construed as
preventing the occurrence of a Default or an Event of Default under Section
6.01.
Nothing contained in this Article Twelve shall limit the
right of the Trustee or the Holders of Notes to take any action to accelerate
the maturity of the Notes pursuant to Article Six or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any,
under this Article Twelve of the holders, from time to time, of Guarantor
Senior Debt.
SECTION 12.12 No Fiduciary Duty of Trustee to Holders of
Guarantor Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Guarantor Senior Debt, and it undertakes to perform or observe
such of its covenants and obligations as are specifically set forth in this
Article Twelve, and no implied covenants or obligations with respect to the
Guarantor Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be liable to any such holders (other than for its willful
misconduct or gross negligence) if it shall pay over or deliver to the holders
of Guarantee Obligations or the Guarantors or any other Person, money or assets
in compliance with the terms of this Indenture. Nothing in this Section 12.12
shall affect the obligation of any Person other than the Trustee to hold such
payment for the benefit of, and to pay such payment over to, the holders of
Guarantor Senior Debt or their Representative.
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 TIA 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 or excludes any provision of the TIA that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 13.02 Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
if to the Company or any Guarantor:
HUNTSMAN PACKAGING CORPORATION
000 Xxxxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Office of General Counsel
with a copy to:
Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
The Company, the Guarantors and the Trustee by written notice
to each other may designate additional or different addresses for notices. Any
notice or communication to the Company, the Guarantors or the Trustee shall be
deemed to have been given or
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made as of the date so delivered if personally delivered; when receipt is
acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by
the addressee).
Any notice or communication mailed to a Holder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Holders. If a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
SECTION 13.03 Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA ss. 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or the
Guarantors to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent to be performed by the
Company, if any, provided for in this Indenture relating to the
proposed action have been complied with.
SECTION 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.07, shall include:
-114-
(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, he has
made such examination or investigation as is reasonably necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 13.07 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in Xxx
Xxxx, Xxx Xxxx, Xxxx Xxxx Xxxx, Xxxx or at such place of payment are not
required to be open. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 13.08 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 WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
SECTION 13.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
-115-
Subsidiaries. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 13.10 No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any Guarantor shall not
have any liability for any obligations of the Company or any Guarantor under
the Notes, the Guarantors or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creations. Each Holder by
accepting a Note waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Notes.
SECTION 13.11 Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 13.12 Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 13.13 Severability.
In case any one or more of the provisions in this Indenture
or in the Notes shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14 Independence of Covenants.
All covenants and agreements in this Indenture and the Notes
shall be given independent effect so that if any particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or otherwise be within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
[Remainder of Page Intentionally Left Blank]
-116-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
HUNTSMAN PACKAGING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and CEO
GUARANTORS
HUNTSMAN DEERFIELD FILMS CORPORATION
HUNTSMAN UNITED FILMS CORPORATION
HUNTSMAN BULK PACKAGING CORPORATION
HUNTSMAN CONTAINER CORPORATION
INTERNATIONAL
HUNTSMAN PACKAGING GEORGIA, INC.
HUNTSMAN FILM PRODUCTS OF MEXICO, INC.
HUNTSMAN PREPARATORY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
HUNTSMAN PACKAGING CORPORATION
By:
---------------------------
Name:
Title:
GUARANTORS
HUNTSMAN DEERFIELD FILMS CORPORATION
HUNTSMAN UNITED FILMS CORPORATION
HUNTSMAN BULK PACKAGING CORPORATION
HUNTSMAN CONTAINER CORPORATION
INTERNATIONAL
HUNTSMAN PACKAGING GEORGIA, INC.
HUNTSMAN FILM PRODUCTS OF MEXICO, INC.
HUNTSMAN PREPARATORY, INC.
By:
---------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------
Name:
Title:
EXHIBIT A-1
[FORM OF NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER THEREOF OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
(OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-2
HUNTSMAN PACKAGING CORPORATION
9 1/8% Senior Subordinated Note due 2007
CUSIP NO. $
No.
HUNTSMAN PACKAGING CORPORATION, a Utah corporation (the
"Company"), for value received, promises to pay to ____________ or registered
assigns, the principal sum of ________________________________ Dollars, on
October 1, 2007.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
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-3
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: HUNTSMAN PACKAGING CORPORATION
By:___________________________
Name:_________________________
Title:________________________
By:___________________________
Name:__________________________
Title:________________________
Trustee's Certificate of Authentication
This is one of the 9 1/8% Senior Subordinated Notes due 2007
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:___________________________
Authorized Signatory
A-4
(REVERSE OF NOTE)
9 1/8% Senior Subordinated Note due 2007
(1) Interest. HUNTSMAN PACKAGING CORPORATION, a Utah
Corporation (the "Company"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above. Interest on the Notes will
accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from September 30, 1997. The Company will pay interest
semi-annually in arrears on each April 1 and October 1 (each, an "Interest
Payment Date") and at stated maturity, commencing on April 1, 1998. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal
and on overdue installments of interest from time to time on demand at the rate
borne by the Notes and on overdue installments of interest (without regard to
any applicable grace periods) to the extent lawful.
(2) Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date even if the Notes are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender Notes
to a Paying Agent to collect principal payments. The Company shall pay
principal, premium and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal, premium and interest by its
check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
(3) Paying Agent and Register. Initially, THE BANK OF NEW
YORK (the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
(4) Indenture. The Company issued the Notes under an
Indenture, dated as of September 30, 1997 (the "Indenture"), among the Company,
each of the Guarantors named therein and the Trustee. This Note is one of a
duly authorized issue of Notes of the Company designated as its 9 1/8% Senior
Subordinated Notes due 2007 (the "Notes"), limited (except as otherwise
provided in the Indenture)
A-5
in aggregate principal amount to $125,000,000, which may be issued under the
Indenture. Capitalized terms used herein shall have the meanings assigned to
them in this Indenture unless otherwise defined herein. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture. Notwithstanding
anything to the contrary herein, the Notes are subject to all such terms, and
Holders of Notes are referred to the Indenture and the TIA for a statement of
them. The Notes are senior subordinated unsecured obligations of the Company.
(5) Optional Redemption. (a) The Notes will be redeemable, at
the Company's option, in whole at any time or in part from time to time, on and
after October 1, 2002, upon not less than 30 nor more than 60 days' notice, at
the following redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the twelve-month period commencing on
October 1 of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
Year Percentage
---- ----------
2002 ........................ 104.563%
2003 ........................ 103.042%
2004 ........................ 101.521%
2005 and thereafter ............... 100.000%
(b) At any time, or from time to time, on or prior to October
1, 2000, the Company may, at its option, use the net cash proceeds of one or
more Equity Offerings (as defined below) to redeem up to 35% of the aggregate
principal amount of the Notes originally issued at a redemption price equal to
109 1/8% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided, however, that at least
65% of the principal amount of the Notes originally issued remain outstanding
immediately after any such redemption. In order to effect the foregoing
redemption with the proceeds of any Equity Offering, the Company shall make
such redemption not more than 120 days after the consummation of any such
Equity Offering.
As used in the preceding paragraph, "Equity Offering" means
any sale of Qualified Capital Stock of the Company or any capital contribution
to the equity of the Company.
(6) Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder whose Notes are to be redeemed at such Holder's registered address.
Notes in denominations larger than $1,000 may be redeemed in part.
A-6
(7) Change of Control Offer. In the event of a Change of
Control, upon the satisfaction of the conditions set forth in the Indenture,
the Company shall be required to offer to repurchase all of the then
outstanding Notes pursuant to a Change of Control Offer at a purchase price
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase. Holders of Notes that are the subject of such
an offer to repurchase shall receive an offer to repurchase and may elect to
have such Notes repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
(8) Limitation on Asset Sales. Under certain circumstances
set forth in Section 4.15 of the Indenture, the Company is required to apply
the net proceeds from Asset Sales to offer to repurchase the Notes at a price
equal to 100% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of repurchase.
(9) Denominations; Transfer; Exchange. The Notes are in fully
registered form only, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer or exchange of 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 certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer or exchange of any Notes during a period beginning 15
days before the mailing of a redemption notice for any Notes or portions
thereof selected for redemption.
(10) Persons Deemed Owners. The registered Holder of a
Note shall be treated as the owner of it for all purposes.
(11) Unclaimed Money. If money for the payment of principal
or interest remains unclaimed for one year, the Trustee and the Paying Agent
will pay the money back to the Company. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
(12) Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender or
non-callable U.S. Government obligations sufficient to pay the
principal of, premium and interest on the Notes to redemption or
maturity and complies with the other provisions of this Indenture
relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain
covenants, but excluding its obligation to pay the principal of,
premium and interest on the Notes).
A-7
(13) Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes. Without consent of any Holder, the parties thereto may amend
or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Notes in
addition to or in place of certificated Notes, or comply with Article Five of
the Indenture, make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note or provide for the issuance
of the Exchange Notes.
(14) 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 or make certain other
restricted payments, enter into transactions with Affiliates, create dividend
or other payment restrictions affecting Restricted Subsidiaries and merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
(15) Successors. When a successor assumes, in accordance with
this Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
(16) Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Notes may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has been offered indemnity or security reasonably satisfactory
to it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes notice of any continuing Default or
Event of Default (except a Default in payment of principal or interest) if it
determines in good faith that withholding notice is in their interest.
A-8
(17) Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Restricted and
Unrestricted Subsidiaries or their respective Affiliates as if it were not the
Trustee.
(18) No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Notes or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder of a Note by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
(19) Authentication. This Note shall not be valid until
the Trustee or authenticating agent manually signs the certificate
of authentication on this Note.
(20) Governing Law. This Note shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of laws to the extent that the
application of the laws of another jurisdiction would be required thereby.
(21) Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST
(=Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(22) CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes as a convenience to the Holders
of the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
(23) Registration Rights. Pursuant to the Registration Rights
Agreement, the Company and the Guarantors will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right
to exchange this Series A Note for a 9 1/8% Senior Subordinated Note due 2007,
Series B, of the Company (an "Unrestricted Note") which has been registered
under the Securities Act, in like principal amount and having terms identical
in all material respects as the Series A Notes. The Holders shall be entitled
to receive certain additional interest payments in the event such exchange
offer is not consummated and upon certain other
A-9
conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
(24) Indenture. Each Holder, by accepting a Note, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time. Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.
(25) Guarantees. This Note will be entitled to the benefits
of certain senior subordinated Guarantees, if any, 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.
The Company will furnish to any Holder of a Note upon
written request and without charge a copy of the Indenture.
Requests may be made to: HUNTSMAN PACKAGING CORPORATION, 000
Xxxxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Office of
General Counsel.
A-10
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------------
-----------------------------------------------------------------
(please print or type name and address)
-----------------------------------------------------------------
------------------------------------------------------------------
-----------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
------------------------------------------------------------------
attorney to transfer the Note on the books of the Company with full power of
substitution in the premises.
Dated:_________________ ____________________________________
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement or
any change whatsoever.
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.
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") covering resales of
this Note (which effectiveness shall not have been suspended or terminated at
the
A-11
date of the transfer) and (ii) September 30, 1999 the undersigned confirms that
it has not utilized any general solicitation or general advertising in
connection with the transfer:
[Check One]
(26) _____ to the Company or a subsidiary thereof; or
(27) _____ pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(28) _____ to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended) that has
furnished to the Trustee a signed letter containing
certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(29) _____ outside the United States to a "foreign purchaser"
in compliance with Rule 904 of Regulation S under
the Securities Act of 1933, as amended; or
(30) _____ pursuant to the exemption from registration
provided by Rule 144 under the Securities Act of
1933, as amended; or
(31) _____ pursuant to an effective registration statement
under the Securities Act of 1933, as amended; or
(32) _____ pursuant to another available exemption from the
registration statement requirements of the
Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate,):
|_| The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse
to register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if
item (3), (4), (5) or (7) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Notes, in their sole discretion,
such written legal opinions, certifications (including an investment letter in
the case of box (3) or (4), and other information as the Trustee or the Company
have reasonably requested to confirm that such transfer is being made pursuant
to an exemption from, or in a transaction
A-12
not subject to, the registration requirements of the Securities Act
of 1933, as amended.
If none of the foregoing items are 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 Section 2.16 of the Indenture
shall have been satisfied.
Dated:____________ Signed: _________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:______________ __________________________________________
NOTICE: To be executed by an executive
officer
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
------------ ------------
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state
the amount: $____________
Date:__________________ Your Signature:__________________________
(Sign exactly as your
name appears on the other
side of this Note)
Signature Guarantee:_______________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Trustee, 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 Trustee in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
X-00
XXXXXXX X-0
------------
FORM OF EXCHANGE NOTE
HUNTSMAN PACKAGING CORPORATION
9 1/8% Senior Subordinated Note due 2007
CUSIP NO. $
No.
HUNTSMAN PACKAGING CORPORATION, a Utah corporation (the
"Company"), for value received, promises to pay to ____________ or registered
assigns, the principal sum of ________________________________ Dollars, on
October 1, 2007.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
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-15
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: HUNTSMAN PACKAGING CORPORATION
By:___________________________
Name:_________________________
Title:________________________
By:___________________________
Name:__________________________
Title:________________________
Trustee's Certificate of Authentication
This is one of the 9 1/8% Senior Subordinated Notes due 2007
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:___________________________
Authorized Signatory
A-16
(REVERSE OF NOTE)
9 1/8% Senior Subordinated Note due 2007
(1) Interest. HUNTSMAN PACKAGING CORPORATION, a Utah
Corporation (the "Company"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above. Interest on the Notes will
accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from September 30, 1997. The Company will pay interest
semi-annually in arrears on each April 1 and October 1 (each, an "Interest
Payment Date") and at stated maturity, commencing on April 1, 1998. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the rate borne
by the Notes and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
(2) Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date even if the Notes are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender Notes
to a Paying Agent to collect principal payments. The Company shall pay
principal, premium and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal, premium and interest by its
check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
(3) Paying Agent and Register. Initially, THE BANK OF NEW
YORK (the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
(4) Indenture. The Company issued the Notes under an
Indenture, dated as of September 30, 1997 (the "Indenture"), among the Company,
each of the Guarantors named therein and the Trustee. This Note is one of a
duly authorized issue of Notes of the Company designated as its 9 1/8% Senior
Subordinated Notes due 2007 (the "Notes"), limited (except as otherwise
provided in the Indenture)
A-17
in aggregate principal amount to $125,000,000, which may be issued under the
Indenture. Capitalized terms used herein shall have the meanings assigned to
them in this Indenture unless otherwise defined herein. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture. Notwithstanding
anything to the contrary herein, the Notes are subject to all such terms, and
Holders of Notes are referred to the Indenture and the TIA for a statement of
them. The Notes are senior subordinated unsecured obligations of the Company.
(5) Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole at any time or in part from time to time, on and
after October 1, 2002, upon not less than 30 nor more than 60 days' notice, at
the following redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the twelve-month period commencing on
October 1 of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
Year Percentage
---- -----------
2002 ........................ 104.563%
2003 ........................ 103.042%
2004 ........................ 101.521%
2005 and thereafter ........... 100.000%
At any time, or from time to time, on or prior to October 1,
2000, the Company may, at its option, use the net cash proceeds of one or more
Equity Offerings (as defined below) to redeem up to 35% of the aggregate
principal amount of the Notes originally issued at a redemption price equal to
109 1/8% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided, however, that at least
65% of the principal amount of the Notes originally issued remain outstanding
immediately after any such redemption. In order to effect the foregoing
redemption with the proceeds of any Equity Offering, the Company shall make
such redemption not more than 120 days after the consummation of any such
Equity Offering.
As used in the preceding paragraph, "Equity Offering" means
any sale of Qualified Capital Stock of the Company or any capital contribution
to the equity of the Company.
(6) Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder whose Notes are to be redeemed at such Holder's registered address.
Notes in denominations larger than $1,000 may be redeemed in part.
A-18
(7) Change of Control Offer. In the event of a Change of
Control, upon the satisfaction of the conditions set forth in the Indenture,
the Company shall be required to offer to repurchase all of the then
outstanding Notes pursuant to a Change of Control Offer at a purchase price
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase. Holders of Notes that are the subject of such
an offer to repurchase shall receive an offer to repurchase and may elect to
have such Notes repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
(8) Limitation on Asset Sales. Under certain circumstances
set forth in Section 4.15 of the Indenture, the Company is required to apply
the net proceeds from Asset Sales to offer to repurchase the Notes at a price
equal to 100% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of repurchase.
(9) Denominations; Transfer; Exchange. The Notes are in fully
registered form only, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer or exchange of 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 certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer or exchange of any Notes during a period beginning 15
days before the mailing of a redemption notice for any Notes or portions
thereof selected for redemption.
(10) Persons Deemed Owners. The registered Holder of a
Note shall be treated as the owner of it for all purposes.
(11) Unclaimed Money. If money for the payment of principal
or interest remains unclaimed for one year, the Trustee and the Paying Agent
will pay the money back to the Company. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
(12) Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender or
non-callable U.S. Government obligations sufficient to pay the
principal of, premium and interest on the Notes to redemption or
maturity and complies with the other provisions of this Indenture
relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain
covenants, but excluding its obligation to pay the principal of,
premium and interest on the Notes).
A-19
(13) Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes. Without consent of any Holder, the parties thereto may amend
or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Notes in
addition to or in place of certificated Notes, or comply with Article Five of
the Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
(14) 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 or make certain other
restricted payments, enter into transactions with Affiliates, create dividend
or other payment restrictions affecting Restricted Subsidiaries and merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
(15) Successors. When a successor assumes, in accordance with
this Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
(16) Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Notes may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has been offered indemnity or security reasonably satisfactory
to it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes notice of any continuing Default or
Event of Default (except a Default in payment of principal or interest) if it
determines in good faith that withholding notice is in their interest.
A-20
(17) Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Restricted and
Unrestricted Subsidiaries or their respective Affiliates as if it were not the
Trustee.
(18) No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Notes or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder of a Note by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
(19) Authentication. This Note shall not be valid until
the Trustee or authenticating agent manually signs the certificate
of authentication on this Note.
(20) Governing Law. This Note shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of laws to the extent that the
application of the laws of another jurisdiction would be required thereby.
(21) Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(22) CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes as a convenience to the Holders
of the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
(23) Indenture. Each Holder, by accepting a Note, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time. Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.
(24) Guarantees. This Note will be entitled to the
benefits of certain senior subordinated Guarantees, if any, made
for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of
A-21
rights, duties and obligations thereunder of the Guarantors, the
Trustee and the Holders.
The Company will furnish to any Holder of a Note upon
written request and without charge a copy of the Indenture.
Requests may be made to: HUNTSMAN PACKAGING CORPORATION, 000
Xxxxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Office of
General Counsel.
A-22
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------------
-----------------------------------------------------------------
(please print or type name and address)
-----------------------------------------------------------------
------------------------------------------------------------------
-----------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
------------------------------------------------------------------
attorney to transfer the Note on the books of the Company with full power of
substitution in the premises.
Dated:_________________ ____________________________________
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement or
any change whatsoever.
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.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
A-23
Section 4.14 [ ] Section 4.15 [ ]
------------ ------------
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state
the amount: $____________
Date:__________________ Your Signature:__________________________
(Sign exactly as your
name appears on the other
side of this Note)
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-24
EXHIBIT B
---------
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 OR A SUCCESSOR 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 COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.
EXHIBIT C
---------
Form of Certificate To Be
Delivered in Connection with
Transfers To Non-QIB Accredited Investors
-----------------------------------------
C-1
[ ], [ ]
[ ]
[ ]
[ ]
Ladies and Gentlemen:
In connection with our proposed purchase of 9 1/8% Senior
Subordinated Notes due 2007 (the "Notes") of HUNTSMAN PACKAGING CORPORATION, a
Utah corporation (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated September 19, 1997, relating to the Notes and
such other information as we deem necessary in order to make our investment
decision. We acknowledge that we have read and agreed to the matters stated in
the section entitled "Transfer Restrictions" of such Offering Memorandum,
including the restrictions on duplication and circulation of the Offering
Memorandum.
2. We understand that any subsequent transfer of subject to
certain restrictions and conditions set Indenture relating to the Notes (the
"Indenture") in the Offering Memorandum and the undersigned bound by, and not
to resell, pledge or otherwise Notes except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act"), and all applicable State securities laws.
3. We understand that the offer and sale of the Notes have
not been registered under the Securities Act, and that the Notes may not be
offered or sold except as permitted in the following sentence. 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 of its subsidiaries, (ii) inside the United States in accordance with
Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (iii) inside the United States
to an institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to the Trustee (as defined in the Indenture) a signed letter
containing certain representations and agreements relating to the restrictions
on transfer of the Notes (the form of which letter can be obtained from the
Trustee), (iv) outside the United States in accordance with Rule 904 of
Regulation S promulgated under the Securities Act to non-U.S. persons, (v)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (vi) pursuant to an
C-2
effective registration statement under the Securities Act, 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.
4. We understand that, on any proposed resale of any Notes,
we will be required to furnish to the Trustee and the Company such
certification, legal opinions and other information as the Trustee and the
Company 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.
5. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the Notes,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be.
6. 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.
You, the Company, the Trustee and others 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:
C-3
EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ], [ ]
[ ]
[ ]
[ ]
Re: Huntsman Packaging Corporation
(the "Company") 9 1/8% Senior
Subordinated Notes due 2007
(the "Notes")
------------------------------
Ladies and Gentlemen:
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 person in
the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting
on our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been 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 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
D-1
You, the Company, the Trustee and others 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:____________________________
Authorized Signature
D-2
EXHIBIT E
---------
GUARANTEE
---------
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of
this Note the cash payments in United States dollars of principal of, premium,
if any, and interest on this Note in the amounts and at the times when due and
interest on the overdue principal, premium, if any, and interest, if any, of
this Note, if lawful, and the payment or performance of all other obligations
of the Company under the Indenture (as defined below) or the Notes, to the
Holder of this Note and the Trustee, all in accordance with and subject to the
terms and limitations of this Note, Article Eleven of the Indenture and this
Guarantee. This Guarantee will become effective in accordance with Article
Eleven of the Indenture and its terms shall be evidenced therein. The validity
and enforceability of any Guarantee shall not be affected by the fact that it
is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of September 30, 1997,
among HUNTSMAN PACKAGING CORPORATION, a Utah corporation, as issuer (the
"Company"), each of the Guarantors named therein and THE BANK OF NEW YORK, as
trustee (the "Trustee"), as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes
and to the Trustee pursuant to this Guarantee and the Indenture are expressly
set forth in Article Eleven of the Indenture and reference is hereby made to
the Indenture for the precise terms of the Guarantee and all of the other
provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW. The undersigned Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
E-1
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee
to be duly executed.
Date:________________________________
[NAME OF GUARANTOR],
as Guarantor
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
E-2