EXHIBIT 4.1
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X. X. XXXXXX AUTOMOTIVE CASTINGS, INC.
FRENCH HOLDINGS, INC.
ALLOTECH INTERNATIONAL, INC.
X. X. XXXXXX CORPORATION
11 1/2% SENIOR SUBORDINATED NOTES DUE 2009
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INDENTURE
Dated as of May 28, 1999
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U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
Act Section Indenture Section
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 11.03
(c) 11.03
313 (a) 7.06
(b)(1) 10.03
(b)(2) 7.07
(c) 7.06;11.02
(d) 7.06
314 (a) 4.03;11.02
(b) 10.02
(c)(1) 11.04
(c)(2) 11.04
(c)(3) N.A.
(d) N.A.
(e) 11.05
(f) N.A.
315 (a) 7.01
(b) 7.05,11.02
(c) 7.01
(d) 7.01
(e) 6.11
316 (a) (last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.12
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) 11.01
(b) N.A.
(c) 11.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.....................................................1
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SECTION 1.02. OTHER DEFINITIONS..............................................23
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SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..............24
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SECTION 1.04. RULES OF CONSTRUCTION..........................................24
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ARTICLE 2 THE NOTES
SECTION 2.01. FORM AND DATING................................................25
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SECTION 2.02. EXECUTION AND AUTHENTICATION...................................26
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SECTION 2.03. REGISTRAR AND PAYING AGENT.....................................26
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SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST............................26
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SECTION 2.05. HOLDER LISTS...................................................27
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SECTION 2.06. TRANSFER AND EXCHANGE..........................................27
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SECTION 2.07. REPLACEMENT NOTES..............................................38
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SECTION 2.08. OUTSTANDING NOTES.............................................38G
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SECTION 2.09. TREASURY NOTES.................................................38
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SECTION 2.10. TEMPORARY NOTES................................................39
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SECTION 2.11. CANCELLATION...................................................39
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SECTION 2.12. DEFAULTED INTEREST.............................................39
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SECTION 2.13. CUSIP NUMBERS..................................................39
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ARTICLE 3 REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.............................................40
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SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED..............................40
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SECTION 3.03. NOTICE OF REDEMPTION...........................................40
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SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.................................41
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE....................................41
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SECTION 3.06. NOTES REDEEMED IN PART.........................................41
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SECTION 3.07. OPTIONAL REDEMPTION............................................41
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SECTION 3.08. MANDATORY REDEMPTION...........................................42
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SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS............42
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ARTICLE 4 COVENANTS
SECTION 4.01. PAYMENT OF NOTES...............................................44
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SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY................................44
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SECTION 4.03. REPORTS........................................................44
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SECTION 4.04. COMPLIANCE CERTIFICATE.........................................45
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SECTION 4.05. TAXES..........................................................46
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SECTION 4.06. STAY, EXTENSION AND USURY LAWS.................................46
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SECTION 4.07. RESTRICTED PAYMENTS............................................46
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SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.........................................48
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SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK................................................49
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SECTION 4.10. ASSET SALES....................................................52
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SECTION 4.11. TRANSACTIONS WITH AFFILIATES...................................53
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SECTION 4.12. LIENS..........................................................54
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SECTION 4.13. BUSINESS ACTIVITIES............................................54
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SECTION 4.14. CORPORATE EXISTENCE............................................54
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SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.....................54
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SECTION 4.16. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES........55
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SECTION 4.17. LIMITATION ON FOREIGN INDEBTEDNESS.............................56
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SECTION 4.18. PAYMENTS FOR CONSENT...........................................56
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SECTION 4.19. ADDITIONAL SUBSIDIARY GUARANTIES...............................56
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SECTION 4.20. LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS..........57
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SECTION 4.21. NO SENIOR SUBORDINATED DEBT....................................57
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ARTICLE 5 SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS. 57
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SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. 58
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ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT..............................................58
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SECTION 6.02. ACCELERATION...................................................59
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SECTION 6.03. OTHER REMEDIES.................................................60
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SECTION 6.04. WAIVER OF PAST DEFAULTS........................................60
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SECTION 6.05. CONTROL BY MAJORITY............................................60
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SECTION 6.06. LIMITATION ON SUITS............................................60
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SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT..................61
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SECTION 6.08. COLLECTION SUIT BY TRUSTEE.....................................61
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM...............................61
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SECTION 6.10. PRIORITIES.....................................................63
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SECTION 6.11. UNDERTAKING FOR COSTS..........................................63
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ARTICLE 7 TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE..............................................64
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SECTION 7.02. RIGHTS OF TRUSTEE..............................................65
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE...................................65
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SECTION 7.04. TRUSTEE'S DISCLAIMER...........................................65
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SECTION 7.05. NOTICE OF DEFAULTS.............................................65
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.....................66
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SECTION 7.07. COMPENSATION AND INDEMNITY.....................................66
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SECTION 7.08. REPLACEMENT OF TRUSTEE.........................................67
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SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC...............................68
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION..................................68
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..............68
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ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.......68
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SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.................................68
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SECTION 8.03. COVENANT DEFEASANCE............................................69
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SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.....................69
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SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS..........................70
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SECTION 8.06. REPAYMENT TO COMPANY...........................................71
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SECTION 8.07. REINSTATEMENT..................................................71
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ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES............................72
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SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES...............................72
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SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT............................74
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS..............................74
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SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES...............................74
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC................................74
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ARTICLE 10 SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE......................................75
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SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY..........................75
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SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.............................75
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SECTION 10.04. ACCELERATION OF SECURITIES....................................76
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SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER...........................76
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SECTION 10.06. NOTICE BY COMPANY.............................................77
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SECTION 10.07. SUBROGATION...................................................77
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SECTION 10.08. RELATIVE RIGHTS...............................................77
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SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY..................77
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SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE......................77
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SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT............................78
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SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.........................78
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SECTION 10.13. AMENDMENTS....................................................78
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ARTICLE 11 SUBSIDIARY GUARANTIES
SECTION 11.01. GUARANTY......................................................78
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SECTION 11.02. SUBORDINATION OF SUBSIDIARY GUARANTY..........................79
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SECTION 11.03. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY..................80
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SECTION 11.04. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTY.................80
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SECTION 11.05. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS.................................................80
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SECTION 11.06. RELEASES FOLLOWING SALE OF ASSETS.............................81
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ARTICLE 12 MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS..................................82
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SECTION 12.02. NOTICES.......................................................82
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SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES..............................................83
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SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT............83
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SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.................83
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SECTION 12.06. RULES BY TRUSTEE AND AGENTS...................................84
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SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS..............................................84
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SECTION 12.08. GOVERNING LAW.................................................84
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SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.................84
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SECTION 12.10. SUCCESSORS....................................................84
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SECTION 12.11. SEVERABILITY..................................................84
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SECTION 12.12. COUNTERPART ORIGINALS.........................................84
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SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC..............................85
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EXHIBITS
EXHIBIT A1 FORM OF NOTE
EXHIBIT A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
EXHIBIT E FORM OF NOTATION OF GUARANTY
EXHIBIT F FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT
SUBSIDIARY GUARANTORS
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INDENTURE DATED AS OF MAY 28, 1999 BY AND AMONG X. X. XXXXXX AUTOMOTIVE
CASTINGS, INC., A DELAWARE CORPORATION (THE "COMPANY"), AND FRENCH HOLDINGS,
INC., A DELAWARE CORPORATION, ALLOTECH INTERNATIONAL, INC., A WISCONSIN
CORPORATION, X. X. XXXXXX CORPORATION, A WISCONSIN CORPORATION (EACH
INDIVIDUALLY A "SUBSIDIARY GUARANTOR" AND COLLECTIVELY THE "SUBSIDIARY
GUARANTORS"), AND U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE (THE
"TRUSTEE").
THE COMPANY AND THE TRUSTEE AGREE AS FOLLOWS FOR THE BENEFIT OF EACH
OTHER AND FOR THE EQUAL AND RATABLE BENEFIT OF THE HOLDERS OF THE 11 1/2% SENIOR
SUBORDINATED NOTES DUE 2009 (THE "NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL NOTE" MEANS A GLOBAL NOTE SUBSTANTIALLY IN THE FORM OF
EXHIBIT A1 HERETO BEARING THE GLOBAL NOTE LEGEND AND THE PRIVATE PLACEMENT
LEGEND AND DEPOSITED WITH OR ON BEHALF OF, AND REGISTERED IN THE NAME OF, THE
DEPOSITARY OR ITS NOMINEE THAT WILL BE ISSUED IN A DENOMINATION EQUAL TO THE
OUTSTANDING PRINCIPAL AMOUNT OF THE NOTES SOLD IN RELIANCE ON RULE 144A.
SET FORTH BELOW ARE CERTAIN DEFINED TERMS USED IN THE INDENTURE.
REFERENCE IS MADE TO THE INDENTURE FOR A FULL DISCLOSURE OF ALL SUCH TERMS, AS
WELL AS ANY OTHER CAPITALIZED TERMS USED HEREIN FOR WHICH NO DEFINITION IS
PROVIDED.
"ACQUIRED DEBT" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON:
(1) INDEBTEDNESS OF ANY OTHER PERSON EXISTING AT THE TIME SUCH
OTHER PERSON IS MERGED WITH OR INTO OR BECAME A SUBSIDIARY OF
SUCH SPECIFIED PERSON, WHETHER OR NOT SUCH INDEBTEDNESS IS
INCURRED IN CONNECTION WITH, OR IN CONTEMPLATION OF, SUCH
OTHER PERSON MERGING WITH OR INTO, OR BECOMING A SUBSIDIARY
OF, SUCH SPECIFIED PERSON; AND
(2) INDEBTEDNESS SECURED BY A LIEN ENCUMBERING ANY ASSET ACQUIRED
BY SUCH SPECIFIED PERSON.
"ADDITIONAL NOTES" MEANS UP TO $100.0 MILLION IN AGGREGATE PRINCIPAL
AMOUNT OF NOTES (OTHER THAN THE INITIAL NOTES) ISSUED UNDER THIS INDENTURE IN
ACCORDANCE WITH SECTIONS 2.02 AND 4.09 HEREOF.
"AFFILIATE" OF ANY SPECIFIED PERSON MEANS ANY OTHER PERSON DIRECTLY OR
INDIRECTLY CONTROLLING OR CONTROLLED BY OR UNDER DIRECT OR INDIRECT COMMON
CONTROL WITH SUCH SPECIFIED PERSON. FOR PURPOSES OF THIS DEFINITION, "CONTROL,"
AS USED WITH RESPECT TO ANY PERSON, SHALL MEAN THE POSSESSION, DIRECTLY OR
INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT OR
POLICIES OF SUCH PERSON, WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES, BY
AGREEMENT OR OTHERWISE; PROVIDED THAT BENEFICIAL OWNERSHIP OF 10% OR MORE OF THE
VOTING STOCK OF A PERSON SHALL BE DEEMED TO BE CONTROL. FOR PURPOSES OF THIS
DEFINITION, THE TERMS
1
"CONTROLLING," "CONTROLLED BY" AND "UNDER COMMON CONTROL WITH" SHALL HAVE
CORRELATIVE MEANINGS.
"AGENT" MEANS ANY REGISTRAR, PAYING AGENT OR CO-REGISTRAR.
"APPLICABLE PROCEDURES" MEANS, WITH RESPECT TO ANY TRANSFER OR EXCHANGE
OF OR FOR BENEFICIAL INTERESTS IN ANY GLOBAL NOTE, THE RULES AND PROCEDURES OF
THE DEPOSITARY, EUROCLEAR AND CEDEL THAT APPLY TO SUCH TRANSFER OR EXCHANGE.
"ASSET SALE" MEANS:
(1) THE SALE, LEASE, CONVEYANCE OR OTHER DISPOSITION OF ANY ASSETS
OR RIGHTS, OTHER THAN SALES OR LEASES IN THE ORDINARY COURSE
OF BUSINESS CONSISTENT WITH PAST PRACTICES; PROVIDED THAT THE
SALE, CONVEYANCE OR OTHER DISPOSITION OF ALL OR SUBSTANTIALLY
ALL OF THE ASSETS OF THE COMPANY AND ITS RESTRICTED
SUBSIDIARIES TAKEN AS A WHOLE SHALL BE GOVERNED BY THE
PROVISIONS OF THE INDENTURE DESCRIBED IN SECTION 4.15 HEREOF
AND/OR THE PROVISIONS DESCRIBED IN SECTION 5.01 AND NOT BY THE
PROVISIONS OF SECTION 4.10 HEREOF; AND
(2) THE ISSUANCE OF EQUITY INTERESTS BY ANY OF THE COMPANY'S
RESTRICTED SUBSIDIARIES OR THE SALE OF EQUITY INTERESTS IN ANY
OF ITS RESTRICTED SUBSIDIARIES.
NOTWITHSTANDING THE PRECEDING, THE FOLLOWING ITEMS SHALL NOT BE DEEMED
TO BE ASSET SALES:
(1) ANY SINGLE TRANSACTION OR SERIES OF RELATED TRANSACTIONS THAT
INVOLVES ASSETS HAVING A FAIR MARKET VALUE OF LESS THAN $2.5
MILLION;
(2) A TRANSFER OF ASSETS BETWEEN OR AMONG THE COMPANY AND ITS
RESTRICTED SUBSIDIARIES,
(3) AN ISSUANCE OF EQUITY INTERESTS BY A RESTRICTED SUBSIDIARY TO
THE COMPANY OR TO ANOTHER RESTRICTED SUBSIDIARY;
(4) THE SALE, LEASE OR LICENSE OF EQUIPMENT, INVENTORY, ACCOUNTS
RECEIVABLE OR OTHER ASSETS IN THE ORDINARY COURSE OF BUSINESS;
(5) THE SALE OR OTHER DISPOSITION OF CASH OR CASH EQUIVALENTS;
(6) A RESTRICTED PAYMENT OR PERMITTED INVESTMENT THAT IS PERMITTED
BY SECTION 4.07 HEREOF;
(7) THE LICENSING OR SUBLICENSING OF INTELLECTUAL PROPERTY OR
OTHER GENERAL INTANGIBLES AND LICENSES, LEASES OR SUBLEASES OF
OTHER PROPERTY IN THE ORDINARY COURSE OF BUSINESS AND WHICH DO
NOT MATERIALLY INTERFERE WITH THE BUSINESS OF THE COMPANY AND
ITS SUBSIDIARIES;
2
(8) SALES OF RECEIVABLES 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;
(9) AN EXCHANGE OR SERIES OF EXCHANGES OF LONG-TERM ASSETS;
PROVIDED (I) THAT THE LONG-TERM ASSETS RECEIVED BY THE COMPANY
OR ANY OF ITS RESTRICTED SUBSIDIARIES HAVE A FAIR MARKET VALUE
(AS DETERMINED BY THE COMPANY) AT LEAST EQUAL TO THE FAIR
MARKET VALUE OF THE ASSETS FOR WHICH THEY WERE EXCHANGED AND
ARE USED OR USEFUL IN A PERMITTED BUSINESS AND (II) THAT THE
AGGREGATE FAIR MARKET VALUE (AS DETERMINED ABOVE) OF SUCH
LONG-TERM ASSETS, TAKEN TOGETHER WITH THE FAIR MARKET VALUE OF
ALL OTHER LONG-TERM ASSETS RECEIVED PURSUANT TO THIS CLAUSE
(9) LESS THE AMOUNT OF NET PROCEEDS PREVIOUSLY REALIZED IN
CASH FROM THE DISPOSITION OF SUCH EARLIER RECEIVED LONG-TERM
ASSETS IS, AT THE TIME OF RECEIPT OF SUCH LONG-TERM ASSETS
(WITH THE FAIR MARKET VALUE OF EACH LONG-TERM ASSET BEING
MEASURED AT THE TIME RECEIVED AND WITHOUT GIVING EFFECT TO
SUBSEQUENT CHANGES IN VALUE), LESS THAN 10.0% OF TOTAL ASSETS;
AND
(10) ANY EXCHANGE OF LIKE PROPERTY PURSUANT TO 1031(G) OF THE
INTERNAL REVENUE CODE OF 1986, AS
AMENDED, FOR USE IN A PERMITTED BUSINESS.
"ATTRIBUTABLE DEBT" IN RESPECT OF A SALE AND LEASEBACK TRANSACTION
MEANS, AT THE TIME OF DETERMINATION, THE PRESENT VALUE OF THE OBLIGATION OF THE
LESSEE FOR NET RENTAL PAYMENTS DURING THE REMAINING TERM OF THE LEASE INCLUDED
IN SUCH SALE AND LEASEBACK TRANSACTION INCLUDING ANY PERIOD FOR WHICH SUCH LEASE
HAS BEEN EXTENDED OR MAY, AT THE OPTION OF THE LESSOR, BE EXTENDED. SUCH PRESENT
VALUE SHALL BE CALCULATED USING A DISCOUNT RATE EQUAL TO THE RATE OF INTEREST
IMPLICIT IN SUCH TRANSACTION, DETERMINED IN ACCORDANCE WITH GAAP.
"BANKRUPTCY LAW" MEANS TITLE 11, U.S. CODE OR ANY SIMILAR FEDERAL OR
STATE LAW FOR THE RELIEF OF DEBTORS.
"BENEFICIAL OWNER" HAS THE MEANING ASSIGNED TO SUCH TERM IN RULE 13D-3
AND RULE 13D-5 UNDER THE EXCHANGE ACT, EXCEPT THAT IN CALCULATING THE BENEFICIAL
OWNERSHIP OF ANY PARTICULAR "PERSON" (AS THAT TERM IS USED IN SECTION 13(D)(3)
OF THE EXCHANGE ACT), SUCH "PERSON" SHALL BE DEEMED TO HAVE BENEFICIAL OWNERSHIP
OF ALL SECURITIES THAT SUCH "PERSON" HAS THE RIGHT TO ACQUIRE BY CONVERSION OR
EXERCISE OF OTHER SECURITIES, WHETHER SUCH RIGHT IS CURRENTLY EXERCISABLE OR IS
EXERCISABLE ONLY UPON THE OCCURRENCE OF A SUBSEQUENT CONDITION. THE TERMS
"BENEFICIALLY OWNS" AND "BENEFICIALLY OWNED" SHALL HAVE A CORRESPONDING MEANING.
"BOARD OF DIRECTORS" MEANS:
(1) WITH RESPECT TO A CORPORATION, THE BOARD OF DIRECTORS OF THE
CORPORATION;
(2) WITH RESPECT TO A PARTNERSHIP, THE BOARD OF DIRECTORS OF THE
GENERAL PARTNER OF THE PARTNERSHIP; AND
(3) WITH RESPECT TO ANY OTHER PERSON, THE BOARD OR COMMITTEE OF
SUCH PERSON SERVING A SIMILAR FUNCTION.
"BORROWING BASE" MEANS, AS OF ANY DATE, AN AMOUNT EQUAL TO:
3
(1) 85% OF THE FACE AMOUNT OF ALL ACCOUNTS RECEIVABLE OWNED BY THE
COMPANY AND ITS RESTRICTED SUBSIDIARIES AS OF THE MOST RECENT
MONTH END FOR WHICH SUCH INFORMATION IS AVAILABLE THAT WERE
NOT MORE THAN 90 DAYS PAST DUE; PLUS
(2) 50% OF THE BOOK VALUE OF ALL INVENTORY OWNED BY THE COMPANY
AND ITS RESTRICTED SUBSIDIARIES AS OF THE MOST RECENT MONTH
END FOR WHICH SUCH INFORMATION IS AVAILABLE.
"BROKER-DEALER" HAS THE MEANING SET FORTH IN THE REGISTRATION RIGHTS
AGREEMENT.
"BUSINESS DAY" MEANS ANY DAY OTHER THAN A LEGAL HOLIDAY.
"CAPITAL LEASE OBLIGATION" MEANS, AT THE TIME ANY DETERMINATION THEREOF
IS TO BE MADE, THE AMOUNT OF THE LIABILITY IN RESPECT OF A CAPITAL LEASE THAT
WOULD AT THAT TIME BE REQUIRED TO BE CAPITALIZED ON A BALANCE SHEET IN
ACCORDANCE WITH GAAP.
"CAPITAL STOCK" MEANS:
(1) IN THE CASE OF A CORPORATION, CORPORATE STOCK;
(2) IN THE CASE OF AN ASSOCIATION OR BUSINESS ENTITY, ANY AND ALL
SHARES, INTERESTS, PARTICIPATIONS, RIGHTS OR OTHER EQUIVALENTS
(HOWEVER DESIGNATED) OF CORPORATE STOCK;
(3) IN THE CASE OF A PARTNERSHIP OR LIMITED LIABILITY COMPANY,
PARTNERSHIP OR MEMBERSHIP INTERESTS (WHETHER GENERAL OR
LIMITED); AND
(4) ANY OTHER INTEREST OR PARTICIPATION THAT CONFERS ON A PERSON
THE RIGHT TO RECEIVE A SHARE OF THE PROFITS AND LOSSES OF, OR
DISTRIBUTIONS OF ASSETS OF, THE ISSUING PERSON.
"CASH EQUIVALENTS" MEANS:
(1) WITH RESPECT TO UNITED STATES DOLLARS, (A) UNITED STATES
DOLLARS, (B) SECURITIES WITH MATURITIES OF ONE YEAR OR LESS
FROM THE DATE OF ACQUISITION ISSUED OR FULLY GUARANTEED OR
INSURED BY THE UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF,
(C) CERTIFICATES OF DEPOSIT, TIME DEPOSITS, OVERNIGHT BANK
DEPOSITS, BANKERS ACCEPTANCES AND REPURCHASE AGREEMENTS OF ANY
COMMERCIAL BANK WHICH HAS, OR WHOSE OBLIGATIONS ARE GUARANTEED
BY AN AFFILIATED COMMERCIAL BANK WHICH HAS CAPITAL AND SURPLUS
IN EXCESS OF $500,000,000 HAVING MATURITIES OF ONE YEAR OR
LESS FROM THE DATE OF ACQUISITION, (D) COMMERCIAL PAPER OF A
COMPANY RATED AT LEAST A-1 BY STANDARD & POOR'S CORPORATION OR
P-1 BY XXXXX'X INVESTORS SERVICE, INC., OR CARRYING AN
EQUIVALENT RATING BY A NATIONALLY RECOGNIZED RATING AGENCY IF
BOTH OF THE TWO NAMED RATING AGENCIES CEASE PUBLISHING RATINGS
OF INVESTMENTS, (E) MONEY MARKET ACCOUNTS OR FUNDS WITH OR
ISSUED BY QUALIFIED COMPANIES, (F) REPURCHASE OBLIGATIONS WITH
A TERM OF NOT MORE THAN 90 DAYS FOR UNDERLYING SECURITIES OF
THE TYPES DESCRIBED IN CLAUSE (B) ABOVE ENTERED INTO WITH ANY
BANK MEETING THE QUALIFICATIONS SPECIFIED IN CLAUSE (C) ABOVE,
AND (G) DEMAND DEPOSIT ACCOUNTS MAINTAINED IN THE ORDINARY
COURSE OF BUSINESS WITH ANY LENDER OR WITH
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ANY BANK THAT IS NOT A LENDER NOT IN EXCESS OF $100,000 IN THE
AGGREGATE ON DEPOSIT WITH ANY SUCH BANK; "QUALIFIED COMPANY"
MEANS ANY COMMERCIAL BANK (A) WHICH HAS, OR WHOSE OBLIGATIONS
ARE GUARANTEED BY AN AFFILIATED COMMERCIAL BANK WHICH HAS,
CAPITAL AND SURPLUS IN EXCESS OF $500,000,000 AND (B) THE
OUTSTANDING SHORT-TERM DEBT SECURITIES OF WHICH ARE RATED AT
LEAST A-1 BY STANDARD & POOR'S CORPORATION OR AT LEAST P-1 BY
XXXXX'X INVESTORS SERVICE, INC., OR CARRY AN EQUIVALENT RATING
BY A NATIONALLY RECOGNIZED RATING AGENCY IF BOTH OF THE TWO
NAMED RATING AGENCIES CEASE PUBLISHING RATINGS OF INVESTMENTS;
(2) WITH RESPECT TO POUNDS STERLING, (A) POUNDS STERLING, (B) ANY
CREDIT BALANCES, REALIZABLE WITHIN THREE (3) MONTHS, ON ANY
BANK OR OTHER DEPOSIT, SAVINGS OR CURRENT ACCOUNT HELD IN THE
UNITED KINGDOM (OR ANY OTHER JURISDICTION FROM WHICH CASH IS
READILY REMITTABLE TO THE UNITED KINGDOM); (C) CASH IN HAND;
(D) GILT EDGED SECURITIES; (E) STERLING COMMERCIAL PAPER
MATURING NOT MORE THAN TWELVE (12) MONTHS FROM THE DATE OF
ISSUE AND RATED A-1 BY STANDARD & POOR'S CORPORATION OR P-1 BY
XXXXX'X INVESTORS SERVICE, INC.; (F) ANY DEPOSIT WITH OR
ACCEPTANCE MATURING NOT MORE THAN ONE (1) YEAR AFTER ISSUE
ACCEPTED BY AN INSTITUTION AUTHORIZED UNDER THE BANKING ACT
1987 OR A BANK; AND (G) STERLING DENOMINATED DEBT SECURITIES
HAVING NOT MORE THAN ONE (1) YEAR UNTIL FINAL MATURITY AND
LISTED ON A RECOGNIZED STOCK EXCHANGE AND RATED AT LEAST AA BY
STANDARD & POOR'S CORPORATION OR AA BY XXXXX'X INVESTORS
SERVICE, INC.; AND
(3) WITH RESPECT TO CURRENCIES OF NATIONS IN WHICH THE COMPANY OR
ITS RESTRICTED SUBSIDIARIES DO BUSINESS, (A) THE CURRENCY OF
SUCH NATIONS AND (B) ANY CREDIT BALANCES REALIZABLE WITHIN
THREE (3) MONTHS, ON ANY BANK OR OTHER DEPOSIT, SAVINGS OR
CURRENT ACCOUNT HELD IN SUCH NATIONS (OR ANY OTHER
JURISDICTION FROM WHICH CASH IS READILY REMITTABLE TO SUCH
NATION).
"CEDEL" MEANS CEDELBANK.
"CERTIFICATED NOTE" MEANS A CERTIFICATED NOTE REGISTERED IN THE NAME OF
THE HOLDER THEREOF AND ISSUED IN ACCORDANCE WITH SECTION 2.06 HEREOF,
SUBSTANTIALLY IN THE FORM OF EXHIBIT A1 HEREOF EXCEPT THAT SUCH NOTE SHALL NOT
BEAR THE GLOBAL NOTE LEGEND AND SHALL NOT HAVE THE "SCHEDULE OF EXCHANGES OF
INTERESTS IN THE GLOBAL NOTE" ATTACHED THERETO.
"CHANGE OF CONTROL" MEANS THE OCCURRENCE OF ANY OF THE FOLLOWING:
(1) THE DIRECT OR INDIRECT SALE, TRANSFER, CONVEYANCE OR OTHER
DISPOSITION (OTHER THAN BY WAY OF MERGER OR CONSOLIDATION), IN
ONE OR A SERIES OF RELATED TRANSACTIONS, OF ALL OR
SUBSTANTIALLY ALL OF THE PROPERTIES OR ASSETS OF THE COMPANY
AND ITS RESTRICTED SUBSIDIARIES TAKEN AS A WHOLE TO ANY
"PERSON" (AS THAT TERM IS USED IN SECTION 13(D)(3) OF THE
EXCHANGE ACT) OTHER THAN A PRINCIPAL OR A RELATED PARTY OF A
PRINCIPAL;
(2) THE ADOPTION OF A PLAN RELATING TO THE LIQUIDATION OR
DISSOLUTION OF THE COMPANY;
(3) THE CONSUMMATION OF ANY TRANSACTION (INCLUDING, WITHOUT
LIMITATION, ANY MERGER OR CONSOLIDATION) THE RESULT OF WHICH
IS THAT ANY "PERSON" (AS DEFINED ABOVE), OTHER THAN THE
PRINCIPALS AND THEIR RELATED PARTIES, BECOMES THE BENEFICIAL
5
OWNER, DIRECTLY OR INDIRECTLY, OF MORE THAN 50% OF THE VOTING
STOCK OF THE COMPANY, MEASURED BY VOTING POWER RATHER THAN
NUMBER OF SHARES;
(4) THE FIRST DAY ON WHICH A MAJORITY OF THE MEMBERS OF THE BOARD
OF DIRECTORS OF THE COMPANY ARE NOT CONTINUING DIRECTORS; OR
(5) THE COMPANY CONSOLIDATES WITH, OR MERGES WITH OR INTO, ANY
PERSON, OR ANY PERSON CONSOLIDATES WITH, OR MERGES WITH OR
INTO, THE COMPANY, IN ANY SUCH EVENT PURSUANT TO A TRANSACTION
IN WHICH ANY OF THE OUTSTANDING VOTING STOCK OF THE COMPANY OR
SUCH OTHER PERSON IS CONVERTED INTO OR EXCHANGED FOR CASH,
SECURITIES OR OTHER PROPERTY, OTHER THAN ANY SUCH TRANSACTION
WHERE THE VOTING STOCK OF THE COMPANY OUTSTANDING IMMEDIATELY
PRIOR TO SUCH TRANSACTION IS CONVERTED INTO OR EXCHANGED FOR
VOTING STOCK (OTHER THAN DISQUALIFIED STOCK) OF THE SURVIVING
OR TRANSFEREE PERSON CONSTITUTING A MAJORITY OF THE
OUTSTANDING SHARES OF SUCH VOTING STOCK OF SUCH SURVIVING OR
TRANSFEREE PERSON (IMMEDIATELY AFTER GIVING EFFECT TO SUCH
ISSUANCE).
"CONSOLIDATED CASH FLOW" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON
FOR ANY PERIOD, THE CONSOLIDATED NET INCOME OF SUCH PERSON FOR SUCH PERIOD PLUS:
(1) AN AMOUNT EQUAL TO ANY EXTRAORDINARY LOSS PLUS ANY NET LOSS
REALIZED BY SUCH PERSON OR ANY OF ITS RESTRICTED SUBSIDIARIES
IN CONNECTION WITH AN ASSET SALE, TO THE EXTENT SUCH LOSSES
WERE DEDUCTED IN COMPUTING SUCH CONSOLIDATED NET INCOME; PLUS
(2) PROVISION FOR TAXES BASED ON INCOME OR PROFITS OF SUCH PERSON
AND ITS RESTRICTED SUBSIDIARIES FOR SUCH PERIOD, TO THE EXTENT
THAT SUCH PROVISION FOR TAXES WAS DEDUCTED IN COMPUTING SUCH
CONSOLIDATED NET INCOME; PLUS
(3) CONSOLIDATED INTEREST EXPENSE OF SUCH PERSON AND ITS
RESTRICTED SUBSIDIARIES FOR SUCH PERIOD, WHETHER PAID OR
ACCRUED AND WHETHER OR NOT CAPITALIZED (INCLUDING, WITHOUT
LIMITATION, AMORTIZATION OF DEBT ISSUANCE COSTS AND ORIGINAL
ISSUE DISCOUNT, NON-CASH INTEREST PAYMENTS, THE INTEREST
COMPONENT OF ANY DEFERRED PAYMENT OBLIGATIONS, THE INTEREST
COMPONENT OF ALL PAYMENTS ASSOCIATED WITH CAPITAL LEASE
OBLIGATIONS, IMPUTED INTEREST WITH RESPECT TO ATTRIBUTABLE
DEBT, COMMISSIONS, DISCOUNTS AND OTHER FEES AND CHARGES
INCURRED IN RESPECT OF LETTER OF CREDIT OR BANKERS' ACCEPTANCE
FINANCINGS, AND NET OF THE EFFECT OF ALL PAYMENTS MADE OR
RECEIVED PURSUANT TO HEDGING OBLIGATIONS), TO THE EXTENT THAT
ANY SUCH EXPENSE WAS DEDUCTED IN COMPUTING SUCH CONSOLIDATED
NET INCOME; PLUS
(4) DEPRECIATION, AMORTIZATION (INCLUDING AMORTIZATION OF GOODWILL
AND OTHER INTANGIBLES BUT EXCLUDING AMORTIZATION OF PREPAID
CASH EXPENSES THAT WERE PAID IN A PRIOR PERIOD) AND OTHER
NON-CASH EXPENSES (EXCLUDING ANY SUCH NON-CASH EXPENSE TO THE
EXTENT THAT IT REPRESENTS AN ACCRUAL OF OR RESERVE FOR CASH
EXPENSES IN ANY FUTURE PERIOD OR AMORTIZATION OF A PREPAID
CASH EXPENSE THAT WAS PAID IN A PRIOR PERIOD) OF SUCH PERSON
AND ITS RESTRICTED SUBSIDIARIES FOR SUCH PERIOD TO THE EXTENT
THAT SUCH DEPRECIATION, AMORTIZATION AND OTHER NON-CASH
EXPENSES WERE DEDUCTED IN COMPUTING SUCH CONSOLIDATED NET
INCOME; MINUS
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(5) NON-CASH ITEMS INCREASING SUCH CONSOLIDATED NET INCOME FOR
SUCH PERIOD, OTHER THAN THE ACCRUAL OF REVENUE IN THE ORDINARY
COURSE OF BUSINESS, IN EACH CASE, ON A CONSOLIDATED BASIS AND
DETERMINED IN ACCORDANCE WITH GAAP.
NOTWITHSTANDING THE PRECEDING, THE PROVISION FOR TAXES BASED ON THE
INCOME OR PROFITS OF, AND THE DEPRECIATION AND AMORTIZATION AND OTHER NON-CASH
EXPENSES OF, A RESTRICTED SUBSIDIARY OF THE COMPANY SHALL BE ADDED TO
CONSOLIDATED NET INCOME TO COMPUTE CONSOLIDATED CASH FLOW OF THE COMPANY ONLY TO
THE EXTENT THAT A CORRESPONDING AMOUNT WOULD BE PERMITTED AT THE DATE OF
DETERMINATION TO BE DIVIDENDED TO THE COMPANY BY SUCH RESTRICTED SUBSIDIARY
WITHOUT PRIOR GOVERNMENTAL APPROVAL (THAT HAS NOT BEEN OBTAINED), AND WITHOUT
DIRECT OR INDIRECT RESTRICTION PURSUANT TO THE TERMS OF ITS CHARTER AND ALL
AGREEMENTS, INSTRUMENTS, JUDGMENTS, DECREES, ORDERS, STATUTES, RULES AND
GOVERNMENTAL REGULATIONS APPLICABLE TO THAT RESTRICTED SUBSIDIARY OR ITS
STOCKHOLDERS.
"CONSOLIDATED NET INCOME" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON
FOR ANY PERIOD, THE AGGREGATE OF THE NET INCOME OF SUCH PERSON AND ITS
RESTRICTED SUBSIDIARIES FOR SUCH PERIOD, ON A CONSOLIDATED BASIS, DETERMINED IN
ACCORDANCE WITH GAAP; PROVIDED THAT:
(1) THE NET INCOME (BUT NOT LOSS) OF ANY PERSON THAT IS NOT A
RESTRICTED SUBSIDIARY OR THAT IS ACCOUNTED FOR BY THE EQUITY
METHOD OF ACCOUNTING SHALL BE INCLUDED ONLY TO THE EXTENT OF
THE AMOUNT OF DIVIDENDS OR DISTRIBUTIONS PAID IN CASH TO THE
SPECIFIED PERSON OR A WHOLLY OWNED RESTRICTED SUBSIDIARY
THEREOF;
(2) THE NET INCOME OF ANY RESTRICTED SUBSIDIARY SHALL BE EXCLUDED
TO THE EXTENT THAT THE DECLARATION OR PAYMENT OF DIVIDENDS OR
SIMILAR DISTRIBUTIONS BY THAT RESTRICTED SUBSIDIARY OF THAT
NET INCOME IS NOT AT THE DATE OF DETERMINATION PERMITTED
WITHOUT ANY PRIOR GOVERNMENTAL APPROVAL (THAT HAS NOT BEEN
OBTAINED) OR, DIRECTLY OR INDIRECTLY, BY OPERATION OF THE
TERMS OF ITS CHARTER OR ANY AGREEMENT, INSTRUMENT, JUDGMENT,
DECREE, ORDER, STATUTE, RULE OR GOVERNMENTAL REGULATION
APPLICABLE TO THAT RESTRICTED SUBSIDIARY OR ITS STOCKHOLDERS;
(3) THE NET INCOME OF ANY PERSON ACQUIRED IN A POOLING OF
INTERESTS TRANSACTION FOR ANY PERIOD PRIOR TO THE DATE OF SUCH
ACQUISITION SHALL BE EXCLUDED;
(4) THE CUMULATIVE EFFECT OF A CHANGE IN ACCOUNTING PRINCIPLES
SHALL BE EXCLUDED;
(5) ANY FEES, EXPENSES AND COSTS RELATING TO THE RECAPITALIZATION,
INCLUDING ANY FEES AND EXPENSES INCURRED IN CONNECTION WITH
THE SUBORDINATED CREDIT FACILITY, ANY COMPENSATION EXPENSE
INCURRED IN CONNECTION WITH THE CANCELLATION OF STOCK OPTIONS
AND EXPENSES RELATED TO EARLY EXTINGUISHMENT OF DEBT, SHALL BE
EXCLUDED; AND
(6) THE NET INCOME (BUT NOT LOSS) OF ANY UNRESTRICTED SUBSIDIARY
SHALL BE EXCLUDED, WHETHER OR NOT DISTRIBUTED TO THE SPECIFIED
PERSON OR ONE OF ITS SUBSIDIARIES.
"CONTINUING DIRECTORS" MEANS, AS OF ANY DATE OF DETERMINATION, ANY
MEMBER OF THE BOARD OF DIRECTORS OF THE COMPANY WHO:
(1) WAS A MEMBER OF SUCH BOARD OF DIRECTORS ON THE DATE OF THE
INDENTURE; OR
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(2) WAS NOMINATED FOR ELECTION OR ELECTED TO SUCH BOARD OF
DIRECTORS WITH THE APPROVAL OF A MAJORITY OF THE CONTINUING
DIRECTORS WHO WERE MEMBERS OF SUCH BOARD AT THE TIME OF SUCH
NOMINATION OR ELECTION.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" SHALL BE AT THE ADDRESS OF THE
TRUSTEE SPECIFIED IN SECTION 12.02 HEREOF OR SUCH OTHER ADDRESS AS TO WHICH THE
TRUSTEE MAY GIVE NOTICE TO THE COMPANY.
"CREDIT AGREEMENT" MEANS THAT CERTAIN CREDIT AGREEMENT, DATED AS OF
APRIL 21, 1999, BY AND AMONG THE COMPANY, AUTOMOTIVE COMPONENTS INVESTMENTS
LIMITED, XXXXXX XXXXX LIMITED, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, AS SYNDICATION AGENT, CHASE MANHATTAN INTERNATIONAL LIMITED, AS
AGENT, AND THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT, AND THE OTHER
LENDERS SIGNATORY THERETO, PROVIDING FOR UP TO $370 MILLION OF REVOLVING CREDIT
BORROWINGS AND TERM LOANS, INCLUDING ANY RELATED NOTES, GUARANTIES, COLLATERAL
DOCUMENTS, INSTRUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH, AND IN
EACH CASE AS AMENDED, MODIFIED, RENEWED, REFUNDED, REPLACED OR REFINANCED, IN
WHOLE OR IN PART, OR INCREASED (PROVIDED THAT SUCH INCREASE IN BORROWINGS IS
PERMITTED BY SECTION 4.09 HEREOF) FROM TIME TO TIME.
"CREDIT FACILITIES" MEANS, ONE OR MORE DEBT FACILITIES (INCLUDING,
WITHOUT LIMITATION, THE CREDIT AGREEMENT) OR COMMERCIAL PAPER FACILITIES, IN
EACH CASE WITH BANKS OR OTHER INSTITUTIONAL LENDERS PROVIDING FOR REVOLVING
CREDIT LOANS, TERM LOANS, RECEIVABLES FINANCING (INCLUDING THROUGH THE SALE OF
RECEIVABLES TO SUCH LENDERS OR TO SPECIAL PURPOSE ENTITIES FORMED TO BORROW FROM
SUCH LENDERS AGAINST SUCH RECEIVABLES) OR LETTERS OF CREDIT, IN EACH CASE, AS
AMENDED, RESTATED, MODIFIED, RENEWED, REFUNDED, REPLACED OR REFINANCED IN WHOLE
OR IN PART FROM TIME TO TIME.
"CUSTODIAN" MEANS THE TRUSTEE, AS CUSTODIAN WITH RESPECT TO THE NOTES
IN GLOBAL FORM, OR ANY SUCCESSOR ENTITY THERETO.
"DEFAULT" MEANS ANY EVENT THAT IS, OR WITH THE PASSAGE OF TIME OR THE
GIVING OF NOTICE OR BOTH WOULD BE, AN EVENT OF DEFAULT.
"DEFINITIVE NOTE" MEANS A CERTIFICATED NOTE REGISTERED IN THE NAME OF
THE HOLDER THEREOF AND ISSUED IN ACCORDANCE WITH SECTION 2.06 HEREOF,
SUBSTANTIALLY IN THE FORM OF EXHIBIT A1 HERETO EXCEPT THAT SUCH NOTE SHALL NOT
BEAR THE GLOBAL NOTE LEGEND AND SHALL NOT HAVE THE "SCHEDULE OF EXCHANGES OF
INTERESTS IN THE GLOBAL NOTE" ATTACHED THERETO.
"DEPOSITARY" MEANS, WITH RESPECT TO THE NOTES ISSUABLE OR ISSUED IN
WHOLE OR IN PART IN GLOBAL FORM, THE PERSON SPECIFIED IN SECTION 2.03 HEREOF AS
THE DEPOSITARY WITH RESPECT TO THE NOTES, AND ANY AND ALL SUCCESSORS THERETO
APPOINTED AS DEPOSITARY HEREUNDER AND HAVING BECOME SUCH PURSUANT TO THE
APPLICABLE PROVISION OF THIS INDENTURE.
"DESIGNATED NONCASH CONSIDERATION" MEANS ANY NON-CASH CONSIDERATION
(OTHER THAN NON-CASH CONSIDERATION THAT WOULD CONSTITUTE A RESTRICTED
INVESTMENT) RECEIVED BY THE COMPANY OR ONE OF ITS RESTRICTED SUBSIDIARIES IN
CONNECTION WITH AN ASSET DISPOSITION THAT IS DESIGNATED AS DESIGNATED NONCASH
CONSIDERATION PURSUANT TO AN OFFICERS' CERTIFICATE EXECUTED BY THE PRINCIPAL
EXECUTIVE OFFICER AND THE PRINCIPAL FINANCIAL OFFICER OF THE COMPANY OR SUCH
RESTRICTED SUBSIDIARY. SUCH OFFICERS' CERTIFICATE SHALL STATE THE BASIS OF SUCH
VALUATION, WHICH SHALL BE A
8
REPORT OF A NATIONALLY RECOGNIZED INVESTMENT BANKING FIRM WITH RESPECT TO THE
RECEIPT IN ONE OR A SERIES OF RELATED TRANSACTIONS OF DESIGNATED NONCASH
CONSIDERATION WITH A FAIR MARKET VALUE IN EXCESS OF $5.0 MILLION.
"DESIGNATED PREFERRED STOCK" MEANS PREFERRED STOCK THAT IS DESIGNATED
AS DESIGNATED PREFERRED STOCK, PURSUANT TO AN OFFICERS' CERTIFICATE EXECUTED BY
THE PRINCIPAL EXECUTIVE OFFICER AND THE PRINCIPAL FINANCIAL OFFICER OF THE
COMPANY ON THE ISSUANCE DATE THEREOF, THE CASH PROCEEDS OF WHICH ARE EXCLUDED
FROM THE CALCULATION SET FORTH IN CLAUSE (C)(II) OF THE FIRST PARAGRAPH OF
SECTION 4.07 HEREOF.
"DESIGNATED SENIOR DEBT" MEANS:
(1) ANY INDEBTEDNESS OUTSTANDING UNDER OR IN RESPECT OF THE CREDIT
AGREEMENT; AND
(2) AFTER PAYMENT IN FULL OF ALL OBLIGATIONS UNDER THE CREDIT
AGREEMENT, ANY OTHER SENIOR DEBT PERMITTED UNDER THIS
INDENTURE THE PRINCIPAL AMOUNT OF WHICH IS $15.0 MILLION OR
MORE AND THAT HAS BEEN DESIGNATED BY THE COMPANY AS
"DESIGNATED SENIOR DEBT."
"DISQUALIFIED STOCK" MEANS ANY CAPITAL STOCK THAT, BY ITS TERMS (OR BY
THE TERMS OF ANY SECURITY INTO WHICH IT IS CONVERTIBLE, OR FOR WHICH IT IS
EXCHANGEABLE, IN EACH CASE AT THE OPTION OF THE HOLDER THEREOF), OR UPON THE
HAPPENING OF ANY EVENT, MATURES OR IS MANDATORILY REDEEMABLE, PURSUANT TO A
SINKING FUND OBLIGATION OR OTHERWISE, OR REDEEMABLE AT THE OPTION OF THE HOLDER
THEREOF, IN WHOLE OR IN PART, ON OR PRIOR TO THE DATE THAT IS 91 DAYS AFTER THE
DATE ON WHICH THE NOTES MATURE. NOTWITHSTANDING THE PRECEDING SENTENCE, ANY
CAPITAL STOCK THAT WOULD CONSTITUTE DISQUALIFIED STOCK SOLELY BECAUSE THE
HOLDERS THEREOF HAVE THE RIGHT TO REQUIRE THE COMPANY TO REPURCHASE SUCH CAPITAL
STOCK UPON THE OCCURRENCE OF A CHANGE OF CONTROL OR AN ASSET SALE SHALL NOT
CONSTITUTE DISQUALIFIED STOCK IF THE TERMS OF SUCH CAPITAL STOCK PROVIDE THAT
THE COMPANY MAY NOT REPURCHASE OR REDEEM ANY SUCH CAPITAL STOCK PURSUANT TO SUCH
PROVISIONS UNLESS SUCH REPURCHASE OR REDEMPTION COMPLIES WITH THE COVENANT
DESCRIBED IN SECTION 4.07 HEREOF.
"DOMESTIC RESTRICTED SUBSIDIARY" MEANS ANY DOMESTIC SUBSIDIARY THAT IS
A RESTRICTED SUBSIDIARY.
"DOMESTIC SUBSIDIARY" MEANS ANY SUBSIDIARY THAT WAS FORMED UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF OR THE DISTRICT OF COLUMBIA.
"EQUITY INTERESTS" MEANS CAPITAL STOCK AND ALL WARRANTS, OPTIONS OR
OTHER RIGHTS TO ACQUIRE CAPITAL STOCK (BUT EXCLUDING ANY DEBT SECURITY THAT IS
CONVERTIBLE INTO, OR EXCHANGEABLE FOR, CAPITAL STOCK).
"EQUITY OFFERING" MEANS AN OFFERING BY THE COMPANY OF SHARES OF ITS
COMMON STOCK (HOWEVER DESIGNATED AND WHETHER VOTING OR NON-VOTING) AND ANY AND
ALL RIGHTS, WARRANTS OR OPTIONS TO ACQUIRE SUCH COMMON STOCK.
"EUROCLEAR" MEANS XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS
OFFICE, AS OPERATOR OF THE EUROCLEAR SYSTEM.
9
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
"EXCHANGE NOTE" MEANS THE NOTES ISSUED IN THE EXCHANGE OFFER PURSUANT
TO SECTION 2.06(F) HEREOF.
"EXCHANGE OFFER" HAS THE MEANING SET FORTH IN THE REGISTRATION RIGHTS
AGREEMENT.
"EXCHANGE OFFER REGISTRATION STATEMENT" HAS THE MEANING SET FORTH IN
THE REGISTRATION RIGHTS AGREEMENT.
"EXISTING INDEBTEDNESS" MEANS INDEBTEDNESS OF THE COMPANY AND ITS
RESTRICTED SUBSIDIARIES (OTHER THAN INDEBTEDNESS UNDER THE CREDIT AGREEMENT) IN
EXISTENCE ON THE DATE OF THE INDENTURE, UNTIL SUCH AMOUNTS ARE REPAID.
"FIXED CHARGES" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON FOR ANY
PERIOD, THE SUM, WITHOUT DUPLICATION, OF:
(1) THE CONSOLIDATED INTEREST EXPENSE OF SUCH PERSON AND ITS
RESTRICTED SUBSIDIARIES FOR SUCH PERIOD, WHETHER PAID OR
ACCRUED, INCLUDING, WITHOUT LIMITATION, AMORTIZATION OF
ORIGINAL ISSUE DISCOUNT, NON-CASH INTEREST PAYMENTS, THE
INTEREST COMPONENT OF ANY DEFERRED PAYMENT OBLIGATIONS, THE
INTEREST COMPONENT OF ALL PAYMENTS ASSOCIATED WITH CAPITAL
LEASE OBLIGATIONS, IMPUTED INTEREST WITH RESPECT TO
ATTRIBUTABLE DEBT, COMMISSIONS, DISCOUNTS AND OTHER FEES AND
CHARGES INCURRED IN RESPECT OF LETTER OF CREDIT OR BANKERS'
ACCEPTANCE FINANCINGS, AND NET OF THE EFFECT OF ALL PAYMENTS
MADE OR RECEIVED PURSUANT TO HEDGING OBLIGATIONS; PLUS
(2) THE CONSOLIDATED INTEREST OF SUCH PERSON AND ITS RESTRICTED
SUBSIDIARIES THAT WAS CAPITALIZED DURING SUCH PERIOD; PLUS
(3) ANY INTEREST EXPENSE ON INDEBTEDNESS OF ANOTHER PERSON THAT IS
GUARANTIED BY SUCH PERSON OR ANY OF ITS RESTRICTED
SUBSIDIARIES OR SECURED BY A LIEN ON ASSETS OF SUCH PERSON OR
ANY OF ITS RESTRICTED SUBSIDIARIES, WHETHER OR NOT SUCH
GUARANTY OR LIEN IS CALLED UPON; PLUS
(4) THE PRODUCT OF (A) ALL DIVIDENDS, WHETHER PAID OR ACCRUED AND
WHETHER OR NOT IN CASH, ON ANY SERIES OF PREFERRED STOCK OF
SUCH PERSON OR ANY OF ITS RESTRICTED SUBSIDIARIES, OTHER THAN
DIVIDENDS ON EQUITY INTERESTS PAYABLE SOLELY IN EQUITY
INTERESTS OF THE COMPANY (OTHER THAN DISQUALIFIED STOCK) OR TO
THE COMPANY OR A RESTRICTED SUBSIDIARY OF THE COMPANY, TIMES
(B) A FRACTION, THE NUMERATOR OF WHICH IS ONE AND THE
DENOMINATOR OF WHICH IS ONE MINUS THE THEN CURRENT COMBINED
FEDERAL, STATE AND LOCAL STATUTORY TAX RATE OF SUCH PERSON,
EXPRESSED AS A DECIMAL, IN EACH CASE, ON A CONSOLIDATED BASIS
AND IN ACCORDANCE WITH GAAP.
"FIXED CHARGE COVERAGE RATIO" MEANS WITH RESPECT TO ANY SPECIFIED
PERSON FOR ANY PERIOD, THE RATIO OF THE CONSOLIDATED CASH FLOW OF SUCH PERSON
FOR SUCH PERIOD TO THE FIXED CHARGES OF SUCH PERSON FOR SUCH PERIOD. IN THE
EVENT THAT THE SPECIFIED PERSON OR ANY OF ITS RESTRICTED SUBSIDIARIES INCURS,
ASSUMES, GUARANTIES, REPAYS, REPURCHASES OR REDEEMS ANY INDEBTEDNESS (OTHER THAN
ORDINARY WORKING CAPITAL BORROWINGS) OR ISSUES, REPURCHASES OR REDEEMS PREFERRED
STOCK
10
SUBSEQUENT TO THE COMMENCEMENT OF THE PERIOD FOR WHICH THE FIXED CHARGE COVERAGE
RATIO IS BEING CALCULATED AND ON OR PRIOR TO THE DATE ON WHICH THE EVENT FOR
WHICH THE CALCULATION OF THE FIXED CHARGE COVERAGE RATIO IS MADE (THE
"CALCULATION DATE"), THEN THE FIXED CHARGE COVERAGE RATIO SHALL BE CALCULATED
GIVING PRO FORMA EFFECT TO SUCH INCURRENCE, ASSUMPTION, GUARANTY, REPAYMENT,
REPURCHASE OR REDEMPTION OF INDEBTEDNESS, OR SUCH ISSUANCE, REPURCHASE OR
REDEMPTION OF PREFERRED STOCK, AND THE USE OF THE PROCEEDS THEREFROM AS IF THE
SAME HAD OCCURRED AT THE BEGINNING OF THE APPLICABLE FOUR-QUARTER REFERENCE
PERIOD.
IN ADDITION, FOR PURPOSES OF CALCULATING THE FIXED CHARGE COVERAGE
RATIO:
(1) ACQUISITIONS THAT HAVE BEEN MADE BY THE SPECIFIED PERSON OR
ANY OF ITS RESTRICTED SUBSIDIARIES, INCLUDING THROUGH MERGERS
OR CONSOLIDATIONS AND INCLUDING ANY RELATED FINANCING
TRANSACTIONS, DURING THE FOUR-QUARTER REFERENCE PERIOD OR
SUBSEQUENT TO SUCH REFERENCE PERIOD AND ON OR PRIOR TO THE
CALCULATION DATE SHALL BE GIVEN PRO FORMA EFFECT AS IF THEY
HAD OCCURRED ON THE FIRST DAY OF THE FOUR-QUARTER REFERENCE
PERIOD AND CONSOLIDATED CASH FLOW FOR SUCH REFERENCE PERIOD
SHALL BE CALCULATED ON A PRO FORMA BASIS IN ACCORDANCE WITH
REGULATION S-X UNDER THE SECURITIES ACT (GIVING EFFECT TO ANY
PRO FORMA COST SAVINGS), BUT WITHOUT GIVING EFFECT TO CLAUSE
(3) OF THE PROVISO SET FORTH IN THE DEFINITION OF CONSOLIDATED
NET INCOME;
(2) THE CONSOLIDATED CASH FLOW ATTRIBUTABLE TO DISCONTINUED
OPERATIONS, AS DETERMINED IN ACCORDANCE WITH GAAP, AND
OPERATIONS OR BUSINESSES DISPOSED OF PRIOR TO THE CALCULATION
DATE, SHALL BE EXCLUDED; AND
(3) THE FIXED CHARGES ATTRIBUTABLE TO DISCONTINUED OPERATIONS, AS
DETERMINED IN ACCORDANCE WITH GAAP, AND OPERATIONS OR
BUSINESSES DISPOSED OF PRIOR TO THE CALCULATION DATE, SHALL BE
EXCLUDED, BUT ONLY TO THE EXTENT THAT THE OBLIGATIONS GIVING
RISE TO SUCH FIXED CHARGES SHALL NOT BE OBLIGATIONS OF THE
SPECIFIED PERSON OR ANY OF ITS RESTRICTED SUBSIDIARIES
FOLLOWING THE CALCULATION DATE.
"FOREIGN SUBSIDIARY" MEANS ANY SUBSIDIARY OF THE COMPANY THAT IS NOT A
DOMESTIC SUBSIDIARY.
"GAAP" MEANS GENERALLY ACCEPTED ACCOUNTING PRINCIPLES SET FORTH IN THE
OPINIONS AND PRONOUNCEMENTS OF THE ACCOUNTING PRINCIPLES BOARD OF THE AMERICAN
INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS AND STATEMENTS AND PRONOUNCEMENTS OF
THE FINANCIAL ACCOUNTING STANDARDS BOARD OR IN SUCH OTHER STATEMENTS BY SUCH
OTHER ENTITY AS HAVE BEEN APPROVED BY A SIGNIFICANT SEGMENT OF THE ACCOUNTING
PROFESSION, WHICH ARE IN EFFECT AS OF THE DATE OF THIS INDENTURE.
"GLOBAL NOTES" MEANS, INDIVIDUALLY AND COLLECTIVELY, EACH OF THE
RESTRICTED GLOBAL NOTES AND THE UNRESTRICTED GLOBAL NOTES, SUBSTANTIALLY IN THE
FORM OF EXHIBIT A HERETO ISSUED IN ACCORDANCE WITH SECTION 2.01, 2.06(B)(IV),
2.06(D)(II) OR 2.06(F) HEREOF.
"GLOBAL NOTE LEGEND" MEANS THE LEGEND SET FORTH IN SECTION 2.06(G)(II),
WHICH IS REQUIRED TO BE PLACED ON ALL GLOBAL NOTES ISSUED UNDER THIS INDENTURE.
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"GOVERNMENT SECURITIES" MEANS DIRECT OBLIGATIONS OF, OR OBLIGATIONS
GUARANTEED BY, THE UNITED STATES OF AMERICA, AND THE PAYMENT FOR WHICH THE
UNITED STATES PLEDGES ITS FULL FAITH AND CREDIT.
"GUARANTY" MEANS A GUARANTY OTHER THAN BY ENDORSEMENT OF NEGOTIABLE
INSTRUMENTS FOR COLLECTION IN THE ORDINARY COURSE OF BUSINESS, DIRECT OR
INDIRECT, IN ANY MANNER INCLUDING, WITHOUT LIMITATION, BY WAY OF A PLEDGE OF
ASSETS OR THROUGH LETTERS OF CREDIT OR REIMBURSEMENT AGREEMENTS IN RESPECT
THEREOF, OF ALL OR ANY PART OF ANY INDEBTEDNESS.
"HEDGING OBLIGATIONS" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON, THE
OBLIGATIONS OF SUCH PERSON UNDER:
(1) INTEREST RATE SWAP AGREEMENTS, INTEREST RATE CAP AGREEMENTS
AND INTEREST RATE COLLAR AGREEMENTS AND FOREIGN EXCHANGE HEDGE
AGREEMENTS; AND
(2) OTHER AGREEMENTS OR ARRANGEMENTS DESIGNED TO PROTECT SUCH
PERSON AGAINST FLUCTUATIONS IN INTEREST RATES AND FOREIGN
EXCHANGE RATES.
"HIDDEN CREEK" MEANS HIDDEN CREEK INDUSTRIES.
"HOLDER" MEANS A PERSON IN WHOSE NAME A NOTE IS REGISTERED.
"IAI GLOBAL NOTE" MEANS THE GLOBAL NOTE SUBSTANTIALLY IN THE FORM OF
EXHIBIT A1 HERETO BEARING THE GLOBAL NOTE LEGEND AND THE PRIVATE PLACEMENT
LEGEND AND DEPOSITED WITH OR ON BEHALF OF AND REGISTERED IN THE NAME OF THE
DEPOSITARY OR ITS NOMINEE THAT WILL BE ISSUED IN A DENOMINATION EQUAL TO THE
OUTSTANDING PRINCIPAL AMOUNT OF THE NOTES SOLD TO INSTITUTIONAL ACCREDITED
INVESTORS.
"INDEBTEDNESS" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON, ANY
INDEBTEDNESS OF SUCH PERSON, WHETHER OR NOT CONTINGENT, IN RESPECT OF:
(1) BORROWED MONEY;
(2) EVIDENCED BY BONDS, NOTES, DEBENTURES OR SIMILAR INSTRUMENTS
OR LETTERS OF CREDIT (OR REIMBURSEMENT AGREEMENTS IN RESPECT
THEREOF);
(3) BANKER'S ACCEPTANCES;
(4) REPRESENTING CAPITAL LEASE OBLIGATIONS;
(5) THE BALANCE DEFERRED AND UNPAID OF THE PURCHASE PRICE OF ANY
PROPERTY, EXCEPT ANY SUCH BALANCE THAT CONSTITUTES AN ACCRUED
EXPENSE OR TRADE PAYABLE; OR
(6) REPRESENTING ANY HEDGING OBLIGATIONS,
IF AND TO THE EXTENT ANY OF THE PRECEDING ITEMS (OTHER THAN LETTERS OF CREDIT
AND HEDGING OBLIGATIONS) WOULD APPEAR AS A LIABILITY UPON A BALANCE SHEET OF THE
SPECIFIED PERSON PREPARED IN ACCORDANCE WITH GAAP. IN ADDITION, THE TERM
"INDEBTEDNESS" INCLUDES ALL INDEBTEDNESS OF OTHERS
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SECURED BY A LIEN ON ANY ASSET OF THE SPECIFIED PERSON (WHETHER OR NOT SUCH
INDEBTEDNESS IS ASSUMED BY THE SPECIFIED PERSON) AND, TO THE EXTENT NOT
OTHERWISE INCLUDED, THE GUARANTY BY THE SPECIFIED PERSON OF ANY INDEBTEDNESS OF
ANY OTHER PERSON.
THE AMOUNT OF ANY INDEBTEDNESS OUTSTANDING AS OF ANY DATE SHALL BE:
(1) THE ACCRETED VALUE THEREOF, IN THE CASE OF ANY INDEBTEDNESS
ISSUED WITH ORIGINAL ISSUE DISCOUNT; AND
(2) THE PRINCIPAL AMOUNT THEREOF, TOGETHER WITH ANY INTEREST
THEREON THAT IS MORE THAN 30 DAYS PAST DUE, IN THE CASE OF
ANY OTHER INDEBTEDNESS.
"INDENTURE" MEANS THIS INDENTURE, AS AMENDED OR SUPPLEMENTED FROM TIME
TO TIME.
"INDIRECT PARTICIPANT" MEANS A PERSON WHO HOLDS A BENEFICIAL INTEREST
IN A GLOBAL NOTE THROUGH A PARTICIPANT.
"INITIAL NOTES" MEANS THE $175.0 MILLION AGGREGATE PRINCIPAL AMOUNT OF
NOTES ISSUED UNDER THE INDENTURE ON THE DATE HEREOF.
"INSTITUTIONAL ACCREDITED INVESTOR" MEANS AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT, WHO ARE NOT ALSO QIBS.
"INVESTMENTS" MEANS, WITH RESPECT TO ANY PERSON, ALL DIRECT OR INDIRECT
INVESTMENTS BY SUCH PERSON IN OTHER PERSONS (INCLUDING AFFILIATES) IN THE FORMS
OF LOANS (INCLUDING GUARANTIES OR OTHER OBLIGATIONS), ADVANCES OR CAPITAL
CONTRIBUTIONS (EXCLUDING COMMISSION, TRAVEL AND SIMILAR ADVANCES TO OFFICERS AND
EMPLOYEES MADE IN THE ORDINARY COURSE OF BUSINESS), PURCHASES OR OTHER
ACQUISITIONS FOR CONSIDERATION OF INDEBTEDNESS, EQUITY INTERESTS OR OTHER
SECURITIES, TOGETHER WITH ALL ITEMS THAT ARE OR WOULD BE CLASSIFIED AS
INVESTMENTS ON A BALANCE SHEET PREPARED IN ACCORDANCE WITH GAAP. IF THE COMPANY
OR ANY RESTRICTED SUBSIDIARY OF THE COMPANY SELLS OR OTHERWISE DISPOSES OF ANY
EQUITY INTERESTS OF ANY DIRECT OR INDIRECT RESTRICTED SUBSIDIARY OF THE COMPANY
SUCH THAT, AFTER GIVING EFFECT TO ANY SUCH SALE OR DISPOSITION, SUCH PERSON IS
NO LONGER A RESTRICTED SUBSIDIARY OF THE COMPANY, THE COMPANY SHALL BE DEEMED TO
HAVE MADE AN INVESTMENT ON THE DATE OF ANY SUCH SALE OR DISPOSITION EQUAL TO THE
FAIR MARKET VALUE OF THE EQUITY INTERESTS OF SUCH RESTRICTED SUBSIDIARY NOT SOLD
OR DISPOSED OF IN AN AMOUNT DETERMINED AS PROVIDED IN THE FINAL PARAGRAPH OF
SECTION 4.07 HEREOF.
"LEGAL HOLIDAY" MEANS A SATURDAY, A SUNDAY OR A DAY ON WHICH BANKING
INSTITUTIONS IN THE CITY OF NEW YORK OR AT A PLACE OF PAYMENT ARE AUTHORIZED BY
LAW, REGULATION OR EXECUTIVE ORDER TO REMAIN CLOSED. IF A PAYMENT DATE IS A
LEGAL HOLIDAY AT A PLACE OF PAYMENT, PAYMENT MAY BE MADE AT THAT PLACE ON THE
NEXT SUCCEEDING DAY THAT IS NOT A LEGAL HOLIDAY, AND NO INTEREST SHALL ACCRUE ON
SUCH PAYMENT FOR THE INTERVENING PERIOD.
"LETTER OF TRANSMITTAL" MEANS THE LETTER OF TRANSMITTAL TO BE PREPARED
BY THE COMPANY AND SENT TO ALL HOLDERS OF THE NOTES FOR USE BY SUCH HOLDERS IN
CONNECTION WITH THE EXCHANGE OFFER.
13
"LIEN" MEANS, WITH RESPECT TO ANY ASSET, ANY MORTGAGE, LIEN, PLEDGE,
CHARGE, SECURITY INTEREST OR ENCUMBRANCE OF ANY KIND IN RESPECT OF SUCH ASSET,
WHETHER OR NOT FILED, RECORDED OR OTHERWISE PERFECTED UNDER APPLICABLE LAW,
INCLUDING ANY CONDITIONAL SALE OR OTHER TITLE RETENTION AGREEMENT, ANY LEASE IN
THE NATURE THEREOF, ANY OPTION OR OTHER AGREEMENT TO SELL OR GIVE A SECURITY
INTEREST IN AND ANY FILING OF OR AGREEMENT TO GIVE ANY FINANCING STATEMENT UNDER
THE UNIFORM COMMERCIAL CODE (OR EQUIVALENT STATUTES) OF ANY JURISDICTION.
"LIQUIDATED DAMAGES" MEANS ALL LIQUIDATED DAMAGES OWING PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT.
"NET INCOME" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON, THE NET
INCOME (LOSS) OF SUCH PERSON, DETERMINED IN ACCORDANCE WITH GAAP AND BEFORE ANY
REDUCTION IN RESPECT OF PREFERRED STOCK DIVIDENDS, EXCLUDING, HOWEVER:
(1) ANY GAIN OR LOSS, TOGETHER WITH ANY RELATED PROVISION FOR
TAXES ON SUCH GAIN OR LOSS, REALIZED IN CONNECTION WITH: (A)
ANY ASSET SALE; OR (B) THE DISPOSITION OF ANY SECURITIES BY
SUCH PERSON OR ANY OF ITS RESTRICTED SUBSIDIARIES OR THE
EXTINGUISHMENT OF ANY INDEBTEDNESS OF SUCH PERSON OR ANY OF
ITS RESTRICTED SUBSIDIARIES; AND
(2) ANY EXTRAORDINARY GAIN OR LOSS, TOGETHER WITH ANY RELATED
PROVISION FOR TAXES ON SUCH EXTRAORDINARY GAIN OR LOSS.
"NET PROCEEDS" MEANS THE AGGREGATE CASH PROCEEDS RECEIVED BY THE
COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES IN RESPECT OF ANY ASSET SALE
(INCLUDING, WITHOUT LIMITATION, ANY CASH RECEIVED UPON THE SALE OR OTHER
DISPOSITION OF ANY NON-CASH CONSIDERATION RECEIVED IN ANY ASSET SALE), NET OF
THE DIRECT COSTS RELATING TO SUCH ASSET SALE, INCLUDING, WITHOUT LIMITATION,
LEGAL, ACCOUNTING AND INVESTMENT BANKING FEES, SALES COMMISSIONS, ANY RELOCATION
EXPENSES INCURRED AS A RESULT THEREOF, TAXES PAID OR PAYABLE AS A RESULT
THEREOF, IN EACH CASE, AFTER TAKING INTO ACCOUNT ANY AVAILABLE TAX CREDITS OR
DEDUCTIONS AND ANY TAX SHARING ARRANGEMENTS, AND AMOUNTS REQUIRED TO BE APPLIED
TO THE REPAYMENT OF INDEBTEDNESS, OTHER THAN THE CREDIT AGREEMENT OF THE COMPANY
OR A SUBSIDIARY GUARANTOR, SECURED BY A LIEN ON THE ASSET OR ASSETS THAT WERE
THE SUBJECT OF SUCH ASSET SALE IN EACH CASE AND ANY RESERVES FOR ADJUSTMENT IN
RESPECT OF THE SALE PRICE OF SUCH ASSET OR ASSETS OR FOR ANY INDEMNIFICATION
OBLIGATIONS ASSUMED IN CONNECTION WITH THE SALE OF SUCH ASSET OR ASSETS,
ESTABLISHED IN ACCORDANCE WITH GAAP; PROVIDED, HOWEVER, THAT THE REVERSAL OF ANY
SUCH RESERVE SHALL BE DEEMED A RECEIPT OF NET PROCEEDS BY THE COMPANY IN THE
AMOUNT AND ON THE DATE OF SUCH REVERSAL.
"NON-RECOURSE DEBT" MEANS INDEBTEDNESS:
(1) AS TO WHICH NEITHER THE COMPANY NOR ANY OF ITS RESTRICTED
SUBSIDIARIES (A) PROVIDES CREDIT SUPPORT OF ANY KIND
(INCLUDING ANY UNDERTAKING, AGREEMENT OR INSTRUMENT THAT WOULD
CONSTITUTE INDEBTEDNESS), (B) IS DIRECTLY OR INDIRECTLY LIABLE
AS A GUARANTOR OR OTHERWISE, OR (C) CONSTITUTES THE LENDER;
(2) NO DEFAULT WITH RESPECT TO WHICH (INCLUDING ANY RIGHTS THAT
THE HOLDERS THEREOF MAY HAVE TO TAKE ENFORCEMENT ACTION
AGAINST AN UNRESTRICTED SUBSIDIARY) WOULD PERMIT UPON NOTICE,
LAPSE OF TIME OR BOTH ANY HOLDER OF ANY OTHER INDEBTEDNESS OF
THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES TO DECLARE A
DEFAULT ON SUCH
14
OTHER INDEBTEDNESS OR CAUSE THE PAYMENT THEREOF TO BE
ACCELERATED OR PAYABLE PRIOR TO ITS STATED MATURITY; AND
(3) AS TO WHICH THE LENDERS HAVE BEEN NOTIFIED IN WRITING THAT
THEY SHALL NOT HAVE ANY RECOURSE TO THE STOCK OR ASSETS OF THE
COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES.
"NON-U.S. PERSON" MEANS A PERSON WHO IS NOT A U.S. PERSON.
"NOTES" HAS THE MEANING ASSIGNED TO IT IN THE PREAMBLE TO THE
INDENTURE. THE INITIAL NOTES AND THE ADDITIONAL NOTES SHALL BE TREATED AS A
SINGLE CLASS FOR ALL PURPOSES UNDER THE INDENTURE.
"OBLIGATIONS" MEANS ANY PRINCIPAL, INTEREST, PENALTIES, FEES,
INDEMNIFICATIONS, REIMBURSEMENT OBLIGATIONS, DAMAGES AND OTHER LIABILITIES
PAYABLE UNDER THE DOCUMENTATION GOVERNING ANY INDEBTEDNESS.
"OFFERING" MEANS THE OFFERING OF THE NOTES BY THE COMPANY.
"OFFICER" MEANS, WITH RESPECT TO ANY PERSON, THE CHAIRMAN OF THE BOARD,
THE CHIEF EXECUTIVE OFFICER, THE PRESIDENT, THE CHIEF OPERATING OFFICER, THE
CHIEF FINANCIAL OFFICER, THE TREASURER, ANY ASSISTANT TREASURER, THE CONTROLLER,
THE SECRETARY OR ANY VICE-PRESIDENT OF SUCH PERSON.
"OFFICERS' CERTIFICATE" MEANS A CERTIFICATE SIGNED ON BEHALF OF THE
COMPANY BY AT LEAST TWO OFFICERS OF THE COMPANY, ONE OF WHOM MUST BE THE
PRINCIPAL EXECUTIVE OFFICER, THE PRINCIPAL FINANCIAL OFFICER, THE TREASURER OR
THE PRINCIPAL ACCOUNTING OFFICER OF THE COMPANY, THAT MEETS THE REQUIREMENTS OF
SECTION 12.05 HEREOF.
"OPINION OF COUNSEL" MEANS AN OPINION FROM LEGAL COUNSEL WHO IS
REASONABLY ACCEPTABLE TO THE TRUSTEE, THAT MEETS THE REQUIREMENTS OF SECTION
12.05 HEREOF. THE COUNSEL MAY BE AN EMPLOYEE OF OR COUNSEL TO THE COMPANY, ANY
SUBSIDIARY OF THE COMPANY OR THE TRUSTEE.
"PARTICIPANT" MEANS, WITH RESPECT TO THE DEPOSITARY, EUROCLEAR OR
CEDEL, A PERSON WHO HAS AN ACCOUNT WITH THE DEPOSITARY, EUROCLEAR OR CEDEL,
RESPECTIVELY (AND, WITH RESPECT TO DTC, SHALL INCLUDE EUROCLEAR AND CEDEL).
"PERMITTED BUSINESS" MEANS THE BUSINESS CONDUCTED BY THE COMPANY AND
ITS RESTRICTED SUBSIDIARIES ON THE DATE HEREOF AND BUSINESSES REASONABLY RELATED
THERETO OR SUPPORTIVE THEREOF.
"PERMITTED INVESTMENTS" MEANS:
(1) ANY INVESTMENT IN THE COMPANY OR IN A RESTRICTED SUBSIDIARY OF
THE COMPANY;
(2) ANY INVESTMENT IN CASH EQUIVALENTS;
15
(3) ANY INVESTMENT BY THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY
IN A PERSON, IF AS A RESULT OF SUCH INVESTMENT:
(A) SUCH PERSON BECOMES A RESTRICTED SUBSIDIARY OF THE
COMPANY; OR
(B) SUCH PERSON IS MERGED, CONSOLIDATED OR AMALGAMATED
WITH OR INTO, OR TRANSFERS OR CONVEYS SUBSTANTIALLY
ALL OF ITS ASSETS TO, OR IS LIQUIDATED INTO, THE
COMPANY OR A RESTRICTED SUBSIDIARY OF THE COMPANY;
(4) ANY INVESTMENT MADE AS A RESULT OF THE RECEIPT OF NON-CASH
CONSIDERATION FROM AN ASSET SALE THAT WAS MADE PURSUANT TO AND
IN COMPLIANCE WITH SECTION 4.10 HEREOF.
(5) ANY ACQUISITION OF ASSETS TO THE EXTENT ACQUIRED IN EXCHANGE
FOR THE ISSUANCE OF EQUITY INTERESTS (OTHER THAN DISQUALIFIED
STOCK) OF THE COMPANY;
(6) HEDGING OBLIGATIONS;
(7) OTHER INVESTMENTS IN ANY PERSON HAVING AN AGGREGATE FAIR
MARKET VALUE (MEASURED ON THE DATE EACH SUCH INVESTMENT WAS
MADE AND WITHOUT GIVING EFFECT TO SUBSEQUENT CHANGES IN
VALUE), WHEN TAKEN TOGETHER WITH ALL OTHER INVESTMENTS MADE
PURSUANT TO THIS CLAUSE (7) THAT ARE AT THE TIME OUTSTANDING
NOT TO EXCEED THE GREATER OF (A) $35.0 MILLION AND (B) 5% OF
TOTAL ASSETS;
(8) INVESTMENTS EXISTING ON THE DATE OF THE INDENTURE AND ANY
AMENDMENT, MODIFICATION, RESTATEMENT, SUPPLEMENT, EXTENSION,
RENEWAL, REFUNDING, REPLACEMENT, REFINANCING, IN WHOLE OR IN
PART, THEREOF;
(9) INVESTMENTS IN PERMITTED JOINT VENTURES IN AN AMOUNT AT ANY
ONE TIME OUTSTANDING NOT TO EXCEED THE GREATER OF 3% OF TOTAL
ASSETS OR $10.0 MILLION;
(10) INVESTMENTS IN UNRESTRICTED SUBSIDIARIES IN AN AMOUNT AT ANY
ONE TIME OUTSTANDING NOT TO EXCEED THE GREATER OF 3% OF TOTAL
ASSETS OR $10.0 MILLION;
(11) INVESTMENTS IN SECURITIES OF TRADE CREDITORS OR CUSTOMERS
RECEIVED PURSUANT TO A PLAN OF REORGANIZATION OR SIMILAR
ARRANGEMENT UPON THE BANKRUPTCY OR INSOLVENCY OF SUCH TRADE
CREDITORS OR CUSTOMERS;
(12) ANY INVESTMENT BY THE COMPANY OR A 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 ANY EQUITY INTEREST;
(13) EXTENSIONS OF TRADE CREDIT IN THE ORDINARY COURSE OF BUSINESS;
AND
(14) LOANS OR ADVANCES TO EMPLOYEES OR CONSULTANTS IN THE ORDINARY
COURSE OF BUSINESS AND CONSISTENT WITH PAST PRACTICES, WHICH
ARE APPROVED BY THE MAJORITY OF THE BOARD OF DIRECTORS IN GOOD
FAITH.
16
"PERMITTED JOINT VENTURE" MEANS AN ENTITY CHARACTERIZED AS A JOINT
VENTURE (HOWEVER STRUCTURED) ENGAGED IN A PERMITTED BUSINESS AND IN WHICH THE
COMPANY OR A RESTRICTED SUBSIDIARY (A) OWNS AT LEAST 25% OF THE OWNERSHIP
INTEREST OR (B) HAS THE RIGHT TO RECEIVE AT LEAST 25% OF THE PROFITS OR
DISTRIBUTIONS; PROVIDED THAT SUCH JOINT VENTURE IS NOT A SUBSIDIARY.
"PERMITTED JUNIOR SECURITIES" MEANS: (1) DEBT SECURITIES OF THE COMPANY
AS REORGANIZED OR READJUSTED, IF APPLICABLE, AND GUARANTEED BY THE SUBSIDIARY
GUARANTORS, OR DEBT SECURITIES OF THE COMPANY (OR ANY OTHER COMPANY, TRUST OR
ORGANIZATION PROVIDED FOR BY A PLAN OF REORGANIZATION OR READJUSTMENT SUCCEEDING
TO THE ASSETS AND LIABILITIES OF THE COMPANY) AND GUARANTEED BY THE SUBSIDIARY
GUARANTORS, IN EACH OF THE FOREGOING CASES, WHICH SECURITIES AND GUARANTEES ARE
SUBORDINATED, TO AT LEAST THE SAME EXTENT AS THE NOTES AND THE SUBSIDIARY
GUARANTIES, TO THE PAYMENT OF ALL SENIOR DEBT AND GUARANTIES THEREOF THAT SHALL
BE OUTSTANDING AFTER GIVING EFFECT TO SUCH REORGANIZATION OR READJUSTMENT, IF
APPLICABLE, SO LONG AS (A) SUCH DEBT SECURITIES ARE NOT ENTITLED TO THE BENEFIT
OF COVENANTS OR DEFAULTS MORE BENEFICIAL TO THE HOLDERS OF SUCH DEBT SECURITIES
THAN THOSE IN EFFECT WITH RESPECT TO THE NOTES (OR THE SENIOR DEBT, AFTER GIVING
EFFECT TO SUCH REORGANIZATION OR READJUSTMENT, IF APPLICABLE), AND (B) SUCH DEBT
SECURITIES SHALL NOT PROVIDE FOR AMORTIZATION INCLUDING SINKING FUND AND
MANDATORY PREPAYMENT PROVISIONS (OTHER THAN A MANDATORY PREPAYMENT OF THE TYPE
DESCRIBED IN SECTION 4.15 HEREOF) COMMENCING PRIOR TO THE DATE WHICH IS ONE YEAR
AFTER THE FINAL SCHEDULED MATURITY DATE OF THE SENIOR DEBT (AS MODIFIED BY SUCH
REORGANIZATION OR READJUSTMENT, IF APPLICABLE), OR (2) EQUITY INTERESTS IN THE
COMPANY OR ANY SUBSIDIARY GUARANTOR; PROVIDED THAT IN EACH CASE WITH RESPECT TO
CLAUSE (1) OR (2) ABOVE (X) IF A NEW CORPORATION RESULTS FROM ANY SUCH
REORGANIZATION OR READJUSTMENT, SUCH CORPORATION ASSUMES ALL SENIOR DEBT THAT
SHALL BE OUTSTANDING AFTER GIVING EFFECT THERETO AND (Y) THE RIGHTS OF THE
HOLDERS OF SENIOR DEBT ARE NOT IMPAIRED.
"PERMITTED LIENS" MEANS:
(1) LIENS OF THE COMPANY AND ANY SUBSIDIARY GUARANTOR SECURING
INDEBTEDNESS AND OTHER OBLIGATIONS UNDER CREDIT FACILITIES
THAT WERE SENIOR DEBT THAT WAS PERMITTED BY THE TERMS OF THE
INDENTURE TO BE INCURRED;
(2) LIENS IN FAVOR OF THE COMPANY OR THE SUBSIDIARY GUARANTORS;
(3) LIENS ON PROPERTY OF A PERSON EXISTING AT THE TIME SUCH PERSON
IS MERGED WITH OR INTO OR CONSOLIDATED WITH THE COMPANY OR ANY
SUBSIDIARY OF THE COMPANY; PROVIDED THAT SUCH LIENS WERE IN
EXISTENCE PRIOR TO THE CONTEMPLATION OF SUCH MERGER OR
CONSOLIDATION AND DO NOT EXTEND TO ANY ASSETS OTHER THAN THOSE
OF THE PERSON MERGED INTO OR CONSOLIDATED WITH THE COMPANY OR
THE SUBSIDIARY;
(4) LIENS ON PROPERTY EXISTING AT THE TIME OF ACQUISITION THEREOF
BY THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY, PROVIDED THAT
SUCH LIENS WERE IN EXISTENCE PRIOR TO THE CONTEMPLATION OF
SUCH ACQUISITION;
(5) LIENS TO SECURE THE PERFORMANCE OF STATUTORY OBLIGATIONS,
SURETY OR APPEAL BONDS, PERFORMANCE BONDS OR OTHER OBLIGATIONS
OF A LIKE NATURE INCURRED IN THE ORDINARY COURSE OF BUSINESS;
17
(6) LIENS TO SECURE INDEBTEDNESS (INCLUDING CAPITAL LEASE
OBLIGATIONS) PERMITTED BY CLAUSE (IV) OF THE SECOND PARAGRAPH
OF SECTION 4.09 HEREOF COVERING ONLY THE ASSETS ACQUIRED WITH
SUCH INDEBTEDNESS;
(7) LIENS EXISTING ON THE DATE OF THE INDENTURE;
(8) LIENS FOR TAXES, ASSESSMENTS OR GOVERNMENTAL CHARGES OR CLAIMS
THAT ARE NOT YET DELINQUENT OR THAT ARE BEING CONTESTED IN
GOOD FAITH BY APPROPRIATE PROCEEDINGS PROMPTLY INSTITUTED AND
DILIGENTLY CONCLUDED, PROVIDED THAT ANY RESERVE OR OTHER
APPROPRIATE PROVISION AS SHALL BE REQUIRED IN CONFORMITY WITH
GAAP SHALL HAVE BEEN MADE THEREFOR;
(9) LIENS (NOT OTHERWISE PERMITTED HEREUNDER) WITH RESPECT TO
OBLIGATIONS THAT DO NOT EXCEED $10.0 MILLION AT ANY ONE TIME
OUTSTANDING;
(10) LIENS ON ASSETS OF UNRESTRICTED SUBSIDIARIES THAT SECURE
NON-RECOURSE DEBT OF UNRESTRICTED SUBSIDIARIES;
(11) LIENS ON ASSETS OF A RESTRICTED SUBSIDIARY THAT IS NOT A
SUBSIDIARY GUARANTOR THAT SECURE INDEBTEDNESS (INCLUDING
ACQUIRED INDEBTEDNESS) INCURRED IN COMPLIANCE WITH THE
COVENANT DESCRIBED IN SECTION 4.17 HEREOF OR INDEBTEDNESS
INCURRED IN COMPLIANCE WITH CLAUSES (I) OR (II) OF SECTION
4.09 HEREOF;
(12) JUDGMENT LIENS NOT GIVING RISE TO AN EVENT OF DEFAULT;
(13) LIENS ENCUMBERING DEPOSITS MADE TO SECURE OBLIGATIONS ARISING
FROM STATUTORY, REGULATORY, CONTRACTUAL, OR WARRANTY
REQUIREMENTS OF THE COMPANY OR ANY OF ITS RESTRICTED
SUBSIDIARIES, INCLUDING RIGHTS OF OFFSET AND SET-OFF;
(14) LIENS IN FAVOR OF CUSTOMS AND REVENUE AUTHORITIES ARISING AS A
MATTER OF LAW TO SECURE PAYMENT OF CUSTOMER DUTIES IN
CONNECTION WITH THE IMPORTATION OF GOODS;
(15) LEASES OR SUBLEASES GRANTED TO OTHERS THAT DO NOT MATERIALLY
INTERFERE WITH THE ORDINARY COURSE OF BUSINESS OF THE COMPANY
AND ITS RESTRICTED SUBSIDIARIES;
(16) LIENS INCURRED OR DEPOSITS MADE IN THE ORDINARY COURSE OF
BUSINESS IN CONNECTION WITH WORKERS' COMPENSATION,
UNEMPLOYMENT INSURANCE AND OTHER TYPES OF SOCIAL SECURITY,
INCLUDING ANY LIEN SECURING LETTERS OF CREDIT ISSUED IN THE
ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE IN
CONNECTION THEREWITH, OR TO SECURE THE PERFORMANCE OF TENDERS,
STATUTORY OBLIGATIONS, SURETY AND APPEAL BONDS, BIDS, LEASES,
GOVERNMENT CONTRACTS, PERFORMANCE AND RETURN-OF-MONEY BONDS
AND OTHER SIMILAR OBLIGATIONS (EXCLUSIVE OF OBLIGATIONS FOR
THE PAYMENT OF BORROWED MONEY);
(17) LIENS IMPOSED BY LAW, SUCH AS CARRIERS', WAREHOUSEMAN'S AND
MECHANICS' LIENS IN EACH CASE FOR SUMS NOT YET DUE OR BEING
CONTESTED IN GOOD FAITH;
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(18) LIENS SECURING INDEBTEDNESS OR OTHER OBLIGATIONS OF A
RESTRICTED SUBSIDIARY OWING TO THE COMPANY OR ANY SUBSIDIARY
GUARANTOR TO THE EXTENT SUCH INDEBTEDNESS IS PERMITTED TO BE
INCURRED IN ACCORDANCE WITH SECTION 4.09 HEREOF;
(19) LIENS SECURING HEDGING OBLIGATIONS AS LONG AS THE RELATED
INDEBTEDNESS IS, AND IS PERMITTED TO BE UNDER THE INDENTURES
TO BE SECURED BY A LIEN ON THE SAME PROPERTY SECURING THE
HEDGING OBLIGATIONS;
(20) LIENS ON SPECIFIC ITEMS OF INVENTORY OR OTHER GOODS AND
PROCEEDS OF ANY PERSON SECURING SUCH PERSON'S OBLIGATIONS WITH
RESPECT OF BANKERS' ACCEPTANCES ISSUED OR CREATED FOR THE
ACCOUNT OF SUCH PERSON TO FACILITATE THE PURCHASE, SHIPMENT OR
STORAGE OF SUCH INVENTORY OR OTHER GOODS;
(21) LIENS ARISING FROM UNIFORM COMMERCIAL CODE FINANCING STATEMENT
FILINGS REGARDING OPERATING LEASES ENTERED INTO BY THE COMPANY
AND ITS RESTRICTED SUBSIDIARIES IN THE ORDINARY COURSE OF
BUSINESS; AND
(22) LIENS ON ASSETS TRANSFERRED TO A SECURITIZATION ENTITY OR ON
ASSETS OF A SECURITIZATION ENTITY, IN EITHER CASE INCURRED IN
CONNECTION WITH A QUALIFIED SECURITIZATION TRANSACTION.
"PERMITTED REFINANCING INDEBTEDNESS" MEANS ANY INDEBTEDNESS OF THE
COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES ISSUED IN EXCHANGE FOR, OR THE NET
PROCEEDS OF WHICH ARE USED TO EXTEND, REFINANCE, RENEW, REPLACE, DEFEASE OR
REFUND OTHER INDEBTEDNESS OF THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES
(OTHER THAN INTERCOMPANY INDEBTEDNESS); PROVIDED THAT:
(1) THE PRINCIPAL AMOUNT (OR ACCRETED VALUE, IF APPLICABLE) OF
SUCH PERMITTED REFINANCING INDEBTEDNESS DOES NOT EXCEED THE
PRINCIPAL AMOUNT (OR ACCRETED VALUE, IF APPLICABLE) OF THE
INDEBTEDNESS SO EXTENDED, REFINANCED, RENEWED, REPLACED,
DEFEASED OR REFUNDED (PLUS ALL ACCRUED INTEREST THEREON AND
THE AMOUNT OF ALL EXPENSES AND PREMIUMS INCURRED IN CONNECTION
THEREWITH);
(2) SUCH PERMITTED REFINANCING INDEBTEDNESS HAS A FINAL MATURITY
DATE LATER THAN THE FINAL MATURITY DATE OF, AND HAS A WEIGHTED
AVERAGE LIFE TO MATURITY EQUAL TO OR GREATER THAN THE WEIGHTED
AVERAGE LIFE TO MATURITY OF, THE INDEBTEDNESS BEING EXTENDED,
REFINANCED, RENEWED, REPLACED, DEFEASED OR REFUNDED;
(3) IF THE INDEBTEDNESS BEING EXTENDED, REFINANCED, RENEWED,
REPLACED, DEFEASED OR REFUNDED IS SUBORDINATED IN RIGHT OF
PAYMENT TO THE NOTES, SUCH PERMITTED REFINANCING INDEBTEDNESS
HAS A FINAL MATURITY DATE LATER THAN THE FINAL MATURITY DATE
OF, AND IS SUBORDINATED IN RIGHT OF PAYMENT TO, THE NOTES ON
TERMS AT LEAST AS FAVORABLE TO THE HOLDERS OF NOTES AS THOSE
CONTAINED IN THE DOCUMENTATION GOVERNING THE INDEBTEDNESS
BEING EXTENDED, REFINANCED, RENEWED, REPLACED, DEFEASED OR
REFUNDED; AND
(4) IF SUCH REFINANCED INDEBTEDNESS WAS INDEBTEDNESS OF THE
COMPANY OR A SUBSIDIARY GUARANTOR, SUCH INDEBTEDNESS IS
INCURRED EITHER BY THE COMPANY OR BY A SUBSIDIARY GUARANTOR.
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"PERSON" MEANS ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, JOINT VENTURE,
ASSOCIATION, JOINT-STOCK COMPANY, TRUST, UNINCORPORATED ORGANIZATION, LIMITED
LIABILITY COMPANY OR GOVERNMENT OR OTHER ENTITY.
"PRINCIPALS" MEANS ONEX DHC LLC AND J2R CORPORATION.
"PRIVATE PLACEMENT LEGEND" MEANS THE LEGEND SET FORTH IN SECTION
2.06(G)(I) TO BE PLACED ON ALL NOTES ISSUED UNDER THIS INDENTURE EXCEPT WHERE
OTHERWISE PERMITTED BY THE PROVISIONS OF THIS INDENTURE.
"PRO FORMA COST SAVINGS" MEANS, WITH RESPECT TO ANY PERIOD, THE
REDUCTION IN COSTS THAT OCCURRED DURING THE FOUR-QUARTER PERIOD OR AFTER THE END
OF THE FOUR-QUARTER PERIOD AND ON OR PRIOR TO THE TRANSACTION DATE THAT WERE (I)
DIRECTLY ATTRIBUTABLE TO AN ASSET ACQUISITION AND CALCULATED ON A BASIS THAT IS
CONSISTENT WITH ARTICLE 11 OF REGULATION S-X UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE INDENTURE OR (II) IMPLEMENTED BY THE BUSINESS THAT WAS
THE SUBJECT OF ANY SUCH ASSET ACQUISITION WITHIN SIX MONTHS OF THE DATE OF THE
ASSET ACQUISITION, THAT ARE SUPPORTABLE AND QUANTIFIABLE BY THE UNDERLYING
ACCOUNTING RECORDS OF SUCH BUSINESS, AND ARE DESCRIBED, AS PROVIDED BELOW, IN AN
OFFICER'S CERTIFICATE, AS IF, IN THE CASE OF EACH OF CLAUSE (I) AND (II), ALL
SUCH REDUCTIONS IN COSTS HAD BEEN EFFECTED AS OF THE BEGINNING OF SUCH PERIOD.
PRO FORMA COST SAVINGS DESCRIBED IN CLAUSE (II) ABOVE SHALL BE SET FORTH IN
REASONABLE SPECIFICITY IN A CERTIFICATE DELIVERED TO THE TRUSTEE FROM THE
COMPANY'S CHIEF FINANCIAL OFFICER AND, IN THE CASE OF PRO FORMA COST SAVINGS IN
EXCESS OF $5.0 MILLION PER FOUR-QUARTER PERIOD, SUCH CERTIFICATE SHALL BE
ACCOMPANIED BY A SUPPORTING OPINION FROM AN ACCOUNTING FIRM OF NATIONAL
STANDING.
"PRODUCTIVE ASSETS" MEANS ASSETS THAT ARE USED OR USEFUL IN, OR CAPITAL
STOCK OF ANY PERSON ENGAGED IN, A PERMITTED BUSINESS.
"QIB" MEANS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A.
"QUALIFIED SECURITIZATION TRANSACTION" MEANS ANY TRANSACTION OR SERIES
OF TRANSACTIONS PURSUANT TO WHICH THE COMPANY OR ANY OF ITS RESTRICTED
SUBSIDIARIES MAY SELL, CONVEY OR OTHERWISE TRANSFER TO (A) A SECURITIZATION
ENTITY (IN THE CASE OF A TRANSFER BY THE COMPANY OR ANY OF ITS RESTRICTED
SUBSIDIARIES) AND (B) ANY OTHER PERSON (IN CASE OF A 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 RESTRICTED SUBSIDIARIES, AND ANY ASSETS RELATED THERETO
INCLUDING, WITHOUT LIMITATION, ALL COLLATERAL SECURING SUCH ACCOUNTS RECEIVABLE
AND OTHER ASSETS (INCLUDING CONTRACT RIGHTS) AND ALL GUARANTEES OR OTHER
OBLIGATIONS IN RESPECT TO 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
ALL OF THE FOREGOING FOR THE PURPOSE OF PROVIDING WORKING CAPITAL FINANCING ON
TERMS THAT ARE MORE FAVORABLE TO THE COMPANY AND ITS RESTRICTED SUBSIDIARY THAN
WOULD OTHERWISE BE AVAILABLE AT THAT TIME.
"RECAPITALIZATION" MEANS THE TRANSACTIONS CONTEMPLATED BY THE
RECAPITALIZATION AGREEMENT DATED MARCH 29, 1999 BY AND AMONG THE COMPANY, JLF
ACQUISITION LLC AND THE OTHER PERSONS LISTED ON THE SIGNATURE PAGES THERETO.
20
"REGISTRATION RIGHTS AGREEMENT" MEANS THE REGISTRATION RIGHTS
AGREEMENT, DATED AS OF MAY 28, 1999, BY AND AMONG THE COMPANY AND OTHER PARTIES
NAMED ON THE SIGNATURE PAGES THEREOF, AS SUCH AGREEMENT MAY BE AMENDED, MODIFIED
OR SUPPLEMENTED FROM TIME TO TIME AND, WITH RESPECT TO ANY ADDITIONAL NOTES, ONE
OR MORE REGISTRATION RIGHTS AGREEMENTS BETWEEN THE COMPANY AND THE OTHER PARTIES
THERETO, AS SUCH AGREEMENT(S) MAY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME
TO TIME, RELATING TO RIGHTS GIVEN BY THE COMPANY TO THE PURCHASERS OF ADDITIONAL
NOTES TO REGISTER SUCH ADDITIONAL NOTES UNDER THE SECURITIES ACT."
"REGULATION S" MEANS REGULATION S PROMULGATED UNDER THE SECURITIES ACT.
"REGULATION S GLOBAL NOTE" MEANS A REGULATION S TEMPORARY GLOBAL NOTE
OR REGULATION S PERMANENT GLOBAL NOTE, AS APPROPRIATE.
"REGULATION S PERMANENT GLOBAL NOTE" MEANS A PERMANENT GLOBAL NOTE IN
THE FORM OF EXHIBIT A1 HERETO BEARING THE GLOBAL NOTE LEGEND AND THE PRIVATE
PLACEMENT LEGEND AND DEPOSITED WITH OR ON BEHALF OF AND REGISTERED IN THE NAME
OF THE DEPOSITARY OR ITS NOMINEE, ISSUED IN A DENOMINATION EQUAL TO THE
OUTSTANDING PRINCIPAL AMOUNT OF THE REGULATION S TEMPORARY GLOBAL NOTE UPON
EXPIRATION OF THE RESTRICTED PERIOD.
"REGULATION S TEMPORARY GLOBAL NOTE" MEANS A TEMPORARY GLOBAL NOTE IN
THE FORM OF EXHIBIT A2 HERETO BEARING THE GLOBAL NOTE LEGEND, THE PRIVATE
PLACEMENT LEGEND AND THE TEMPORARY REGULATION S LEGEND AND DEPOSITED WITH OR ON
BEHALF OF AND REGISTERED IN THE NAME OF THE DEPOSITARY OR ITS NOMINEE, ISSUED IN
A DENOMINATION EQUAL TO THE OUTSTANDING PRINCIPAL AMOUNT OF THE NOTES INITIALLY
SOLD IN RELIANCE ON RULE 903 OF REGULATION S.
"RELATED PARTY" MEANS:
(1) ANY CONTROLLING STOCKHOLDER, 80% (OR MORE) OWNED SUBSIDIARY,
OR IMMEDIATE FAMILY MEMBER (IN THE CASE OF AN INDIVIDUAL) OF
ANY PRINCIPAL; OR
(2) ANY TRUST, CORPORATION, PARTNERSHIP OR OTHER ENTITY, THE
BENEFICIARIES, STOCKHOLDERS, PARTNERS, OWNERS OR PERSONS
BENEFICIALLY HOLDING AN 80% OR MORE CONTROLLING INTEREST OF
WHICH CONSIST OF ANY ONE OR MORE PRINCIPALS AND/OR SUCH OTHER
PERSONS REFERRED TO IN THE IMMEDIATELY PRECEDING CLAUSE (1).
"REPRESENTATIVE" MEANS THE INDENTURE TRUSTEE OR OTHER TRUSTEE, AGENT OR
REPRESENTATIVE FOR ANY SENIOR DEBT.
"RESPONSIBLE OFFICER," WHEN USED WITH RESPECT TO THE TRUSTEE, MEANS ANY
OFFICER WITHIN THE CORPORATE TRUST ADMINISTRATION OF THE TRUSTEE (OR ANY
SUCCESSOR GROUP OF THE TRUSTEE) OR ANY OTHER OFFICER OF THE TRUSTEE CUSTOMARILY
PERFORMING FUNCTIONS SIMILAR TO THOSE PERFORMED BY ANY OF THE ABOVE DESIGNATED
OFFICERS AND ALSO MEANS, WITH RESPECT TO A PARTICULAR CORPORATE TRUST MATTER,
ANY OTHER OFFICER TO WHOM SUCH MATTER IS REFERRED BECAUSE OF HIS KNOWLEDGE OF
AND FAMILIARITY WITH THE PARTICULAR SUBJECT.
"RESTRICTED DEFINITIVE NOTE" MEANS A DEFINITIVE NOTE BEARING THE
PRIVATE PLACEMENT LEGEND.
"RESTRICTED GLOBAL NOTE" MEANS A GLOBAL NOTE BEARING THE PRIVATE
PLACEMENT LEGEND.
21
"RESTRICTED INVESTMENT" MEANS AN INVESTMENT OTHER THAN A PERMITTED
INVESTMENT.
"RESTRICTED SUBSIDIARY" OF A PERSON MEANS ANY SUBSIDIARY OF THE
REFERENT PERSON THAT IS NOT AN UNRESTRICTED SUBSIDIARY.
"RULE 144" MEANS RULE 144 PROMULGATED UNDER THE SECURITIES ACT.
"RULE 144A" MEANS RULE 144A PROMULGATED UNDER THE SECURITIES ACT.
"RULE 903" MEANS RULE 903 PROMULGATED UNDER THE SECURITIES ACT.
"RULE 904" MEANS RULE 904 PROMULGATED THE SECURITIES ACT.
"SEC" MEANS THE SECURITIES AND EXCHANGE COMMISSION.
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED.
"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) THAT ENGAGES IN
NO ACTIVITIES OTHER THAN IN CONNECTION WITH THE FINANCING OF ACCOUNTS RECEIVABLE
AND THAT 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 OTHER RESTRICTED SUBSIDIARY (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 RESTRICTED SUBSIDIARY IN ANY WAY OTHER THAN PURSUANT TO STANDARD
SECURITIZATION UNDERTAKINGS, (B) WITH WHICH NEITHER THE COMPANY NOR ANY
RESTRICTED SUBSIDIARY HAS ANY MATERIAL CONTRACT, AGREEMENT, ARRANGEMENT OR
UNDERSTANDING OTHER THAN ON TERMS NO LESS FAVORABLE TO THE COMPANY OR SUCH
RESTRICTED 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 RESTRICTED SUBSIDIARY 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 SHALL BE EVIDENCED TO EACH OF THE TRUSTEES BY FILING
WITH THE TRUSTEES A CERTIFIED COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS
GIVING EFFECT TO SUCH DESIGNATION AND AN OFFICERS' CERTIFICATE CERTIFYING THAT
SUCH DESIGNATION COMPLIED WITH THE FOREGOING CONDITIONS.
"SENIOR DEBT" MEANS:
(1) ALL INDEBTEDNESS OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR
OUTSTANDING UNDER CREDIT FACILITIES AND ALL HEDGING
OBLIGATIONS WITH RESPECT THERETO;
(2) ANY OTHER INDEBTEDNESS OF THE COMPANY OR ANY SUBSIDIARY
GUARANTOR PERMITTED TO BE INCURRED UNDER THE TERMS OF THE
INDENTURE, UNLESS THE INSTRUMENT UNDER WHICH SUCH INDEBTEDNESS
IS INCURRED EXPRESSLY PROVIDES THAT IT IS ON A PARITY WITH
22
OR SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES OR ANY
SUBSIDIARY GUARANTY, AS THE CASE MAY BE; AND
(3) ALL OBLIGATIONS WITH RESPECT TO THE ITEMS LISTED IN THE
PRECEDING CLAUSES (1) AND (2).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING, SENIOR DEBT
SHALL NOT INCLUDE:
(1) ANY LIABILITY FOR FEDERAL, STATE, LOCAL OR OTHER TAXES
OWED OR OWING BY THE COMPANY OR THE SUBSIDIARY GUARANTORS;
(2) ANY INDEBTEDNESS OF THE COMPANY TO ANY OF ITS SUBSIDIARIES OR
OTHER AFFILIATES;
(3) ANY TRADE PAYABLES; OR
(4) ANY INDEBTEDNESS THAT IS INCURRED IN VIOLATION OF THE
INDENTURE.
"SENIOR GUARANTIES" MEANS THE GUARANTIES BY THE SUBSIDIARY GUARANTORS
OF OBLIGATIONS UNDER THE CREDIT AGREEMENT.
"SHELF REGISTRATION STATEMENT" MEANS THE SHELF REGISTRATION STATEMENT
DEFINED IN THE REGISTRATION RIGHTS AGREEMENT.
"SIGNIFICANT SUBSIDIARY" MEANS ANY SUBSIDIARY THAT WOULD BE A
"SIGNIFICANT SUBSIDIARY" AS DEFINED IN ARTICLE 1, RULE 1-02 OF REGULATION S-X,
PROMULGATED PURSUANT TO THE SECURITIES ACT, AS SUCH REGULATION IS IN EFFECT ON
THE DATE HEREOF.
"STANDARD SECURITIZATION UNDERTAKINGS" MEANS REPRESENTATIONS,
WARRANTIES, COVENANTS AND INDEMNITIES ENTERED INTO BY THE COMPANY OR ANY
SUBSIDIARY OF THE COMPANY THAT ARE REASONABLY CUSTOMARY IN AN ACCOUNTS
RECEIVABLE SECURITIZATION TRANSACTION.
"STATED MATURITY" MEANS, WITH RESPECT TO ANY INSTALLMENT OF INTEREST OR
PRINCIPAL ON ANY SERIES OF INDEBTEDNESS, THE DATE ON WHICH SUCH PAYMENT OF
INTEREST OR PRINCIPAL WAS SCHEDULED TO BE PAID IN THE ORIGINAL DOCUMENTATION
GOVERNING SUCH INDEBTEDNESS, AND SHALL NOT INCLUDE ANY CONTINGENT OBLIGATIONS TO
REPAY, REDEEM OR REPURCHASE ANY SUCH INTEREST OR PRINCIPAL PRIOR TO THE DATE
ORIGINALLY SCHEDULED FOR THE PAYMENT THEREOF.
"SUBORDINATED CREDIT FACILITY" MEANS THE BRIDGE LOAN AGREEMENT DATED AS
OF APRIL 21, 1999 BY AND AMONG THE COMPANY, THE SUBSIDIARY GUARANTORS, THE
LENDERS NAMED THEREIN, BANC OF AMERICA SECURITIES LLC AND CHASE SECURITIES INC.,
AS ARRANGERS, NATIONSBRIDGE, L.L.C. AND THE CHASE MANHATTAN BANK, AS CO-AGENTS,
AND NATIONSBRIDGE, L.L.C., AS ADMINISTRATIVE AGENT.
"SUBSIDIARY" MEANS, WITH RESPECT TO ANY SPECIFIED PERSON:
(1) ANY CORPORATION, ASSOCIATION OR OTHER BUSINESS ENTITY OF WHICH
MORE THAN 50% OF THE TOTAL VOTING POWER OF SHARES OF CAPITAL
STOCK ENTITLED (WITHOUT REGARD TO THE OCCURRENCE OF ANY
CONTINGENCY) TO VOTE IN THE ELECTION OF DIRECTORS, MANAGERS OR
TRUSTEES THEREOF IS AT THE TIME OWNED OR CONTROLLED, DIRECTLY
OR
23
INDIRECTLY, BY SUCH PERSON OR ONE OR MORE OF THE OTHER
SUBSIDIARIES OF THAT PERSON (OR A COMBINATION THEREOF); AND
(2) ANY PARTNERSHIP (A) THE SOLE GENERAL PARTNER OR THE MANAGING
GENERAL PARTNER OF WHICH IS SUCH PERSON OR A SUBSIDIARY OF
SUCH PERSON OR (B) THE ONLY GENERAL PARTNERS OF WHICH ARE SUCH
PERSON OR ONE OR MORE SUBSIDIARIES OF SUCH PERSON (OR ANY
COMBINATION THEREOF).
"SUBSIDIARY GUARANTORS" MEANS:
(1) EACH DOMESTIC SUBSIDIARY OF THE COMPANY EXISTING ON THE DATE
OF THE INDENTURE; AND
(2) ANY OTHER SUBSIDIARY THAT EXECUTES A SUBSIDIARY GUARANTY IN
ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE;
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
"SUBSIDIARY GUARANTY" MEANS A GUARANTY OF THE COMPANY'S OBLIGATIONS
WITH RESPECT TO THE NOTES BY ANY SUBSIDIARY GUARANTOR OR ANY RESTRICTED
SUBSIDIARY OF THE COMPANY THAT EXECUTES A SUPPLEMENTAL INDENTURE SUBSTANTIALLY
IN THE FORM OF EXHIBIT F HERETO.
"TIA" MEANS THE TRUST INDENTURE ACT OF 1939 (15
U.S.C. Sections 77AAA-77BBBB) AS IN EFFECT ON THE DATE ON WHICH THIS INDENTURE
IS QUALIFIED UNDER THE TIA.
"TOTAL ASSETS" MEANS THE TOTAL ASSETS OF THE COMPANY AND ITS RESTRICTED
SUBSIDIARIES ON A CONSOLIDATED BASIS DETERMINED IN ACCORDANCE WITH GAAP, AS
SHOWN ON THE MOST RECENTLY AVAILABLE CONSOLIDATED BALANCE SHEET OF THE COMPANY
AND ITS RESTRICTED SUBSIDIARIES.
"TRUSTEE" MEANS THE PARTY NAMED AS SUCH ABOVE UNTIL A SUCCESSOR
REPLACES IT IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS INDENTURE AND
THEREAFTER MEANS THE SUCCESSOR SERVING HEREUNDER.
"UNRESTRICTED DEFINITIVE NOTE" MEANS ONE OR MORE DEFINITIVE NOTES THAT
DO NOT BEAR AND ARE NOT REQUIRED TO BEAR THE PRIVATE PLACEMENT LEGEND.
"UNRESTRICTED GLOBAL NOTE" MEANS A PERMANENT GLOBAL NOTE SUBSTANTIALLY
IN THE FORM OF EXHIBIT A1 ATTACHED HERETO THAT BEARS THE GLOBAL NOTE LEGEND AND
THAT HAS THE "SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE" ATTACHED
THERETO, AND THAT IS DEPOSITED WITH OR ON BEHALF OF AND REGISTERED IN THE NAME
OF THE DEPOSITARY, REPRESENTING A SERIES OF NOTES THAT DO NOT BEAR THE PRIVATE
PLACEMENT LEGEND.
"UNRESTRICTED SUBSIDIARY" MEANS ANY SUBSIDIARY OF THE COMPANY THAT IS
DESIGNATED BY THE BOARD OF DIRECTORS AS AN UNRESTRICTED SUBSIDIARY PURSUANT TO A
BOARD RESOLUTION, BUT ONLY TO THE EXTENT THAT SUCH SUBSIDIARY:
(1) HAS NO INDEBTEDNESS OTHER THAN NON-RECOURSE DEBT:
24
(2) IS NOT PARTY TO ANY AGREEMENT, CONTRACT, ARRANGEMENT OR
UNDERSTANDING WITH THE COMPANY OR ANY RESTRICTED SUBSIDIARY OF
THE COMPANY UNLESS THE TERMS OF ANY SUCH AGREEMENT, CONTRACT,
ARRANGEMENT OR UNDERSTANDING ARE NO LESS FAVORABLE TO THE
COMPANY OR SUCH RESTRICTED SUBSIDIARY THAN THOSE THAT MIGHT BE
OBTAINED AT THE TIME FROM PERSONS WHO ARE NOT AFFILIATES OF
THE COMPANY;
(3) IS A PERSON WITH RESPECT TO WHICH NEITHER THE COMPANY NOR ANY
OF ITS RESTRICTED SUBSIDIARIES HAS ANY DIRECT OR INDIRECT
OBLIGATION (A) TO SUBSCRIBE FOR ADDITIONAL EQUITY INTERESTS OR
(B) TO MAINTAIN OR PRESERVE SUCH PERSON'S FINANCIAL CONDITION
OR TO CAUSE SUCH PERSON TO ACHIEVE ANY SPECIFIED LEVELS OF
OPERATING RESULTS; AND
(4) HAS NOT GUARANTEED OR OTHERWISE DIRECTLY OR INDIRECTLY
PROVIDED CREDIT SUPPORT FOR ANY INDEBTEDNESS OF THE COMPANY OR
ANY OF ITS RESTRICTED SUBSIDIARIES.
ANY DESIGNATION OF A SUBSIDIARY OF THE COMPANY AS AN UNRESTRICTED
SUBSIDIARY SHALL BE EVIDENCED TO THE TRUSTEE BY FILING WITH THE TRUSTEE A
CERTIFIED COPY OF THE BOARD RESOLUTION GIVING EFFECT TO SUCH DESIGNATION AND AN
OFFICERS' CERTIFICATE CERTIFYING THAT SUCH DESIGNATION COMPLIED WITH THE
PRECEDING CONDITIONS AND WAS PERMITTED BY SECTION 4.07 HEREOF. IF, AT ANY TIME,
ANY UNRESTRICTED SUBSIDIARY WOULD FAIL TO MEET THE PRECEDING REQUIREMENTS AS AN
UNRESTRICTED SUBSIDIARY, IT SHALL THEREAFTER CEASE TO BE AN UNRESTRICTED
SUBSIDIARY FOR PURPOSES OF THE INDENTURE AND ANY INDEBTEDNESS OF SUCH SUBSIDIARY
SHALL BE DEEMED TO BE INCURRED BY A RESTRICTED SUBSIDIARY OF THE COMPANY AS OF
SUCH DATE AND, IF SUCH INDEBTEDNESS IS NOT PERMITTED TO BE INCURRED AS OF SUCH
DATE UNDER THE COVENANT DESCRIBED IN SECTION 4.09 HEREOF THE COMPANY SHALL BE IN
DEFAULT OF SUCH COVENANT. THE BOARD OF DIRECTORS OF THE COMPANY MAY AT ANY TIME
DESIGNATE ANY UNRESTRICTED SUBSIDIARY TO BE A RESTRICTED SUBSIDIARY; PROVIDED
THAT SUCH DESIGNATION SHALL BE DEEMED TO BE AN INCURRENCE OF INDEBTEDNESS BY A
RESTRICTED SUBSIDIARY OF THE COMPANY OF ANY OUTSTANDING INDEBTEDNESS OF SUCH
UNRESTRICTED SUBSIDIARY AND SUCH DESIGNATION SHALL ONLY BE PERMITTED IF (1) SUCH
INDEBTEDNESS IS PERMITTED UNDER THE COVENANT DESCRIBED UNDER THE CAPTION IN
SECTION 4.09 HEREOF CALCULATED ON A PRO FORMA BASIS AS IF SUCH DESIGNATION HAD
OCCURRED AT THE BEGINNING OF THE FOUR-QUARTER REFERENCE PERIOD; AND (2) NO
DEFAULT OR EVENT OF DEFAULT WOULD BE IN EXISTENCE FOLLOWING SUCH DESIGNATION.
"U.S. PERSON" MEANS A U.S. PERSON AS DEFINED IN RULE 902(O) UNDER THE
SECURITIES ACT.
"VOTING STOCK" OF ANY PERSON AS OF ANY DATE MEANS THE CAPITAL STOCK OF
SUCH PERSON THAT IS AT THE TIME ENTITLED TO VOTE IN THE ELECTION OF THE BOARD OF
DIRECTORS OF SUCH PERSON.
"WEIGHTED AVERAGE LIFE TO MATURITY" MEANS, WHEN APPLIED TO ANY
INDEBTEDNESS AT ANY DATE, THE NUMBER OF YEARS OBTAINED BY DIVIDING:
(1) THE SUM OF THE PRODUCTS OBTAINED BY MULTIPLYING (A) THE AMOUNT
OF EACH THEN REMAINING INSTALLMENT, SINKING FUND, SERIAL
MATURITY OR OTHER REQUIRED PAYMENTS OF PRINCIPAL, INCLUDING
PAYMENT AT FINAL MATURITY, IN RESPECT THEREOF, BY (B) THE
NUMBER OF YEARS (CALCULATED TO THE NEAREST ONE-TWELFTH) THAT
WILL ELAPSE BETWEEN SUCH DATE AND THE MAKING OF SUCH PAYMENT;
BY
(2) THE THEN OUTSTANDING PRINCIPAL AMOUNT OF SUCH INDEBTEDNESS.
25
"WHOLLY OWNED RESTRICTED SUBSIDIARY" OF ANY SPECIFIED PERSON MEANS A
RESTRICTED SUBSIDIARY OF SUCH PERSON ALL OF THE OUTSTANDING CAPITAL STOCK OR
OTHER OWNERSHIP INTERESTS OF WHICH (OTHER THAN DIRECTORS' QUALIFYING SHARES)
SHALL AT THE TIME BE OWNED BY SUCH PERSON AND/OR BY ONE OR MORE WHOLLY OWNED
RESTRICTED SUBSIDIARIES OF SUCH PERSON.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- -------
"AFFILIATE TRANSACTION" .....................................4.11
"ASSET SALE OFFER" ..........................................3.09
"AUTHENTICATION ORDER" ......................................2.02
"CHANGE OF CONTROL OFFER" ...................................4.15
"CHANGE OF CONTROL PAYMENT" .................................4.15
"CHANGE OF CONTROL PAYMENT DATE" ............................4.15
"COVENANT DEFEASANCE" .......................................8.03
"EVENT OF DEFAULT" ..........................................6.01
"EXCESS PROCEEDS" ...........................................4.10
"INCUR" .....................................................4.09
"LEGAL DEFEASANCE" ..........................................8.02
"OFFER AMOUNT" ..............................................3.09
"OFFER PERIOD" ..............................................3.09
"PAYMENT BLOCKAGE NOTICE ...................................10.03
"PAYMENT DEFAULT" ...........................................6.01
"PAYING AGENT" ..............................................2.03
"PERMITTED DEBT" ............................................4.09
"PURCHASE DATE" .............................................3.09
"REGISTRAR" .................................................2.03
"RESTRICTED PAYMENTS" .......................................4.07
SECTION 1.03.INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
WHENEVER THIS INDENTURE REFERS TO A PROVISION OF THE TIA, THE
PROVISION IS INCORPORATED BY REFERENCE IN AND MADE A PART OF THIS INDENTURE.
THE FOLLOWING TIA TERMS USED IN THIS INDENTURE HAVE THE FOLLOWING
MEANINGS:
"INDENTURE SECURITIES" MEANS THE NOTES;
"INDENTURE SECURITY HOLDER" MEANS A HOLDER OF A NOTE;
"INDENTURE TO BE QUALIFIED" MEANS THIS INDENTURE;
"INDENTURE TRUSTEE" OR "INSTITUTIONAL TRUSTEE" MEANS THE TRUSTEE; AND
26
"OBLIGOR" ON THE NOTES AND THE SUBSIDIARY GUARANTIES MEANS THE
COMPANY AND THE SUBSIDIARY GUARANTORS AND ANY SUCCESSOR OBLIGOR UPON THE NOTES
AND THE SUBSIDIARY GUARANTIES RESPECTIVELY.
ALL OTHER TERMS USED IN THIS INDENTURE THAT ARE DEFINED BY THE TIA,
DEFINED BY TIA REFERENCE TO ANOTHER STATUTE OR DEFINED BY SEC RULE UNDER THE TIA
HAVE THE MEANINGS SO ASSIGNED TO THEM.
SECTION 1.04. RULES OF CONSTRUCTION.
UNLESS THE CONTEXT OTHERWISE REQUIRES:
(A) A TERM HAS THE MEANING ASSIGNED TO IT;
(B) AN ACCOUNTING TERM NOT OTHERWISE DEFINED HAS THE MEANING ASSIGNED
TO IT IN ACCORDANCE WITH GAAP;
(C) "OR" IS NOT EXCLUSIVE;
(D) WORDS IN THE SINGULAR INCLUDE THE PLURAL, AND IN THE PLURAL
INCLUDE THE SINGULAR;
(E) PROVISIONS APPLY TO SUCCESSIVE EVENTS AND TRANSACTIONS; AND
(F) REFERENCES TO SECTIONS OF OR RULES UNDER THE SECURITIES ACT SHALL
BE DEEMED TO INCLUDE SUBSTITUTE, REPLACEMENT OF SUCCESSOR SECTIONS OR RULES
ADOPTED BY THE SEC FROM TIME TO TIME.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
(A) GENERAL. THE NOTES AND THE TRUSTEE'S CERTIFICATE OF
AUTHENTICATION SHALL BE SUBSTANTIALLY IN THE FORM OF EXHIBIT A1 HERETO. THE
NOTES MAY HAVE NOTATIONS, LEGENDS OR ENDORSEMENTS REQUIRED BY LAW, STOCK
EXCHANGE RULE OR USAGE. EACH NOTE SHALL BE DATED THE DATE OF ITS AUTHENTICATION.
THE NOTES SHALL BE IN DENOMINATIONS OF $1,000 AND INTEGRAL MULTIPLES THEREOF.
THE TERMS AND PROVISIONS CONTAINED IN THE NOTES SHALL CONSTITUTE, AND
ARE HEREBY EXPRESSLY MADE, A PART OF THIS INDENTURE AND THE COMPANY, THE
SUBSIDIARY GUARANTORS AND THE TRUSTEE, BY THEIR EXECUTION AND DELIVERY OF THIS
INDENTURE, EXPRESSLY AGREE TO SUCH TERMS AND PROVISIONS AND TO BE BOUND THEREBY.
HOWEVER, TO THE EXTENT ANY PROVISION OF ANY NOTE CONFLICTS WITH THE EXPRESS
PROVISIONS OF THIS INDENTURE, THE PROVISIONS OF THIS INDENTURE SHALL GOVERN AND
BE CONTROLLING.
(B) GLOBAL NOTES. NOTES ISSUED IN GLOBAL FORM SHALL BE SUBSTANTIALLY
IN THE FORM OF EXHIBIT A1 OR A2 ATTACHED HERETO (INCLUDING THE GLOBAL NOTE
LEGEND THEREON AND THE "SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE"
ATTACHED THERETO). NOTES ISSUED IN DEFINITIVE FORM SHALL BE SUBSTANTIALLY IN THE
FORM OF EXHIBIT A1 ATTACHED HERETO (BUT
27
WITHOUT THE GLOBAL NOTE LEGEND THEREON AND WITHOUT THE "SCHEDULE OF EXCHANGES OF
INTERESTS IN THE GLOBAL NOTE" ATTACHED THERETO). EACH GLOBAL NOTE SHALL
REPRESENT SUCH OF THE OUTSTANDING NOTES AS SHALL BE SPECIFIED THEREIN AND EACH
SHALL PROVIDE THAT IT SHALL REPRESENT THE AGGREGATE PRINCIPAL AMOUNT OF
OUTSTANDING NOTES FROM TIME TO TIME ENDORSED THEREON AND THAT THE AGGREGATE
PRINCIPAL AMOUNT OF OUTSTANDING NOTES REPRESENTED THEREBY MAY FROM TIME TO TIME
BE REDUCED OR INCREASED, AS APPROPRIATE, TO REFLECT EXCHANGES AND REDEMPTIONS.
ANY ENDORSEMENT OF A GLOBAL NOTE TO REFLECT THE AMOUNT OF ANY INCREASE OR
DECREASE IN THE AGGREGATE PRINCIPAL AMOUNT OF OUTSTANDING NOTES REPRESENTED
THEREBY SHALL BE MADE BY THE TRUSTEE OR THE CUSTODIAN, AT THE DIRECTION OF THE
TRUSTEE, IN ACCORDANCE WITH INSTRUCTIONS GIVEN BY THE HOLDER THEREOF AS REQUIRED
BY SECTION 2.06 HEREOF.
(C) TEMPORARY GLOBAL NOTES. NOTES OFFERED AND SOLD IN RELIANCE ON
REGULATION S SHALL BE ISSUED INITIALLY IN THE FORM OF THE REGULATION S TEMPORARY
GLOBAL NOTE, WHICH SHALL BE DEPOSITED ON BEHALF OF THE PURCHASERS OF THE NOTES
REPRESENTED THEREBY WITH THE TRUSTEE, AS CUSTODIAN FOR THE DEPOSITARY, AND
REGISTERED IN THE NAME OF THE DEPOSITARY OR THE NOMINEE OF THE DEPOSITARY FOR
THE ACCOUNTS OF DESIGNATED AGENTS HOLDING ON BEHALF OF EUROCLEAR OR CEDELBANK,
DULY EXECUTED BY THE COMPANY AND AUTHENTICATED BY THE TRUSTEE AS HEREINAFTER
PROVIDED. THE RESTRICTED PERIOD SHALL BE TERMINATED UPON THE RECEIPT BY THE
TRUSTEE OF (I) A WRITTEN CERTIFICATE FROM EUROCLEAR AND CEDELBANK CERTIFYING
THAT THEY HAVE RECEIVED CERTIFICATION OF NON-UNITED STATES BENEFICIAL OWNERSHIP
OF 100% OF THE AGGREGATE PRINCIPAL AMOUNT OF THE REGULATION S TEMPORARY GLOBAL
NOTE (EXCEPT TO THE EXTENT OF ANY BENEFICIAL OWNERS THEREOF WHO ACQUIRED AN
INTEREST THEREIN DURING THE RESTRICTED PERIOD PURSUANT TO ANOTHER EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND WHO WILL TAKE DELIVERY OF A BENEFICIAL
OWNERSHIP INTEREST IN A 144A GLOBAL NOTE OR AN IAI GLOBAL NOTE BEARING A PRIVATE
PLACEMENT LEGEND, ALL AS CONTEMPLATED BY SECTION 2.06(A)(II) HEREOF), AND (II)
AN OFFICERS' CERTIFICATE FROM THE COMPANY. FOLLOWING THE TERMINATION OF THE
RESTRICTED PERIOD, BENEFICIAL INTERESTS IN THE REGULATION S TEMPORARY GLOBAL
NOTE SHALL BE EXCHANGED FOR BENEFICIAL INTERESTS IN REGULATION S PERMANENT
GLOBAL NOTES PURSUANT TO THE APPLICABLE PROCEDURES. SIMULTANEOUSLY WITH THE
AUTHENTICATION OF REGULATION S PERMANENT GLOBAL NOTES, THE TRUSTEE SHALL CANCEL
THE REGULATION S TEMPORARY GLOBAL NOTE. THE AGGREGATE PRINCIPAL AMOUNT OF THE
REGULATION S TEMPORARY GLOBAL NOTE AND THE REGULATION S PERMANENT GLOBAL NOTES
MAY FROM TIME TO TIME BE INCREASED OR DECREASED BY ADJUSTMENTS MADE ON THE
RECORDS OF THE TRUSTEE AND THE DEPOSITARY OR ITS NOMINEE, AS THE CASE MAY BE, IN
CONNECTION WITH TRANSFERS OF INTEREST AS HEREINAFTER PROVIDED.
(D) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. THE BOOK-ENTRY SYSTEMS
AND PROCEDURES OF EUROCLEAR AND CEDELBANK SHALL BE APPLICABLE TO TRANSFERS OF
BENEFICIAL INTERESTS IN THE REGULATION S TEMPORARY GLOBAL NOTE AND THE
REGULATION S PERMANENT GLOBAL NOTES THAT ARE HELD BY PARTICIPANTS THROUGH
EUROCLEAR OR CEDELBANK.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
TWO OFFICERS SHALL SIGN THE NOTES FOR THE COMPANY BY MANUAL OR
FACSIMILE SIGNATURE.
IF AN OFFICER WHOSE SIGNATURE IS ON A NOTE NO LONGER HOLDS THAT
OFFICE AT THE TIME A NOTE IS AUTHENTICATED, THE NOTE SHALL NEVERTHELESS BE
VALID.
A NOTE SHALL NOT BE VALID UNTIL AUTHENTICATED BY THE MANUAL SIGNATURE
OF THE TRUSTEE. THE SIGNATURE SHALL BE CONCLUSIVE EVIDENCE THAT THE NOTE HAS
BEEN AUTHENTICATED UNDER THIS INDENTURE.
28
THE TRUSTEE SHALL, UPON A WRITTEN ORDER OF THE COMPANY SIGNED BY TWO
OFFICERS (AN "AUTHENTICATION ORDER") AUTHENTICATE NOTES FOR ORIGINAL ISSUE UP TO
THE AGGREGATE PRINCIPAL AMOUNT OF UP TO $275.0 MILLION. THE AGGREGATE PRINCIPAL
AMOUNT OF NOTES OUTSTANDING AT ANY TIME MAY NOT EXCEED $275.0 MILLION EXCEPT AS
PROVIDED IN SECTION 2.07 HEREOF.
THE TRUSTEE MAY APPOINT AN AUTHENTICATING AGENT ACCEPTABLE TO THE
COMPANY TO AUTHENTICATE NOTES. AN AUTHENTICATING AGENT MAY AUTHENTICATE NOTES
WHENEVER THE TRUSTEE MAY DO SO. EACH REFERENCE IN THIS INDENTURE TO
AUTHENTICATION BY THE TRUSTEE INCLUDES AUTHENTICATION BY SUCH AGENT. AN
AUTHENTICATING AGENT HAS THE SAME RIGHTS AS AN AGENT TO DEAL WITH HOLDERS OR AN
AFFILIATE OF THE COMPANY.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
THE COMPANY SHALL MAINTAIN AN OFFICE OR AGENCY WHERE NOTES MAY BE
PRESENTED FOR REGISTRATION OF TRANSFER OR FOR EXCHANGE ("REGISTRAR") AND AN
OFFICE OR AGENCY WHERE NOTES MAY BE PRESENTED FOR PAYMENT ("PAYING AGENT"). THE
REGISTRAR SHALL KEEP A REGISTER OF THE NOTES AND OF THEIR TRANSFER AND EXCHANGE.
THE COMPANY MAY APPOINT ONE OR MORE CO-REGISTRARS AND ONE OR MORE ADDITIONAL
PAYING AGENTS. THE TERM "REGISTRAR" INCLUDES ANY CO-REGISTRAR AND THE TERM
"PAYING AGENT" INCLUDES ANY ADDITIONAL PAYING AGENT. THE COMPANY MAY CHANGE ANY
PAYING AGENT OR REGISTRAR WITHOUT NOTICE TO ANY HOLDER. THE COMPANY SHALL NOTIFY
THE TRUSTEE IN WRITING OF THE NAME AND ADDRESS OF ANY AGENT NOT A PARTY TO THIS
INDENTURE. IF THE COMPANY FAILS TO APPOINT OR MAINTAIN ANOTHER ENTITY AS
REGISTRAR OR PAYING AGENT, THE TRUSTEE SHALL ACT AS SUCH. THE COMPANY OR ANY OF
ITS SUBSIDIARIES MAY ACT AS PAYING AGENT OR REGISTRAR.
THE COMPANY INITIALLY APPOINTS THE DEPOSITORY TRUST COMPANY ("DTC")
TO ACT AS DEPOSITARY WITH RESPECT TO THE GLOBAL NOTES.
THE COMPANY INITIALLY APPOINTS THE TRUSTEE TO ACT AS THE REGISTRAR
AND PAYING AGENT AND TO ACT AS CUSTODIAN WITH RESPECT TO THE GLOBAL NOTES.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
THE COMPANY SHALL REQUIRE EACH PAYING AGENT OTHER THAN THE TRUSTEE TO
AGREE IN WRITING THAT THE PAYING AGENT SHALL HOLD IN TRUST FOR THE BENEFIT OF
HOLDERS OR THE TRUSTEE ALL MONEY HELD BY THE PAYING AGENT FOR THE PAYMENT OF
PRINCIPAL, PREMIUM OR LIQUIDATED DAMAGES, IF ANY, OR INTEREST ON THE NOTES, AND
SHALL NOTIFY THE TRUSTEE OF ANY DEFAULT BY THE COMPANY IN MAKING ANY SUCH
PAYMENT. WHILE ANY SUCH DEFAULT CONTINUES, THE TRUSTEE MAY REQUIRE A PAYING
AGENT TO PAY ALL MONEY HELD BY IT TO THE TRUSTEE. THE COMPANY AT ANY TIME MAY
REQUIRE A PAYING AGENT TO PAY ALL MONEY HELD BY IT TO THE TRUSTEE. UPON PAYMENT
OVER TO THE TRUSTEE, THE PAYING AGENT (IF OTHER THAN THE COMPANY OR A
SUBSIDIARY) SHALL HAVE NO FURTHER LIABILITY FOR THE MONEY. IF THE COMPANY OR A
SUBSIDIARY ACTS AS PAYING AGENT, IT SHALL SEGREGATE AND HOLD IN A SEPARATE TRUST
FUND FOR THE BENEFIT OF THE HOLDERS ALL MONEY HELD BY IT AS PAYING AGENT. UPON
ANY BANKRUPTCY OR REORGANIZATION PROCEEDINGS RELATING TO THE COMPANY, THE
TRUSTEE SHALL SERVE AS PAYING AGENT FOR THE NOTES.
SECTION 2.05. HOLDER LISTS.
THE TRUSTEE SHALL PRESERVE IN AS CURRENT A FORM AS IS REASONABLY
PRACTICABLE THE MOST RECENT LIST AVAILABLE TO IT OF THE NAMES AND ADDRESSES OF
ALL HOLDERS AND SHALL OTHERWISE COMPLY WITH TIA SS. 312(A). IF THE TRUSTEE IS
NOT THE REGISTRAR, THE COMPANY SHALL
29
FURNISH TO THE TRUSTEE AT LEAST SEVEN BUSINESS DAYS BEFORE EACH INTEREST PAYMENT
DATE AND AT SUCH OTHER TIMES AS THE TRUSTEE MAY REQUEST IN WRITING, A LIST IN
SUCH FORM AND AS OF SUCH DATE AS THE TRUSTEE MAY REASONABLY REQUIRE OF THE NAMES
AND ADDRESSES OF THE HOLDERS OF NOTES AND THE COMPANY SHALL OTHERWISE COMPLY
WITH TIA Section. 312(A).
SECTION 2.06. TRANSFER AND EXCHANGE.
(A) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A GLOBAL NOTE MAY NOT BE
TRANSFERRED AS A WHOLE EXCEPT BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. ALL GLOBAL NOTES SHALL BE EXCHANGED
BY FOR CERTIFICATED NOTES IF (I) THE COMPANY DELIVERS TO THE TRUSTEE NOTICE FROM
THE DEPOSITARY THAT IT IS UNWILLING OR UNABLE TO CONTINUE TO ACT AS DEPOSITARY
OR THAT IT IS NO LONGER A CLEARING AGENCY REGISTERED UNDER THE EXCHANGE ACT AND,
IN EITHER CASE, A SUCCESSOR DEPOSITARY IS NOT APPOINTED BY THE COMPANY WITHIN
120 DAYS AFTER THE DATE OF SUCH NOTICE FROM THE DEPOSITARY OR (II) THE COMPANY
IN ITS SOLE DISCRETION DETERMINES THAT THE GLOBAL NOTES (IN WHOLE BUT NOT IN
PART) SHOULD BE EXCHANGED FOR CERTIFICATED NOTES AND DELIVERS A WRITTEN NOTICE
TO SUCH EFFECT TO THE TRUSTEE; PROVIDED THAT IN NO EVENT SHALL THE REGULATION S
TEMPORARY GLOBAL NOTE BE EXCHANGED BY THE COMPANY FOR CERTIFICATED NOTES PRIOR
TO (X) THE EXPIRATION OF THE RESTRICTED PERIOD AND (Y) THE RECEIPT BY THE
REGISTRAR OF ANY CERTIFICATES REQUIRED PURSUANT TO RULE 903(B)(3)(II)(B) UNDER
THE SECURITIES ACT. UPON THE OCCURRENCE OF EITHER OF THE PRECEDING EVENTS IN (I)
OR (II) ABOVE, CERTIFICATED NOTES SHALL BE ISSUED IN SUCH NAMES AS THE
DEPOSITARY SHALL INSTRUCT THE TRUSTEE. GLOBAL NOTES ALSO MAY BE EXCHANGED OR
REPLACED, IN WHOLE OR IN PART, AS PROVIDED IN SECTIONS 2.07 AND 2.10 HEREOF.
EVERY NOTE AUTHENTICATED AND DELIVERED IN EXCHANGE FOR, OR IN LIEU OF, A GLOBAL
NOTE OR ANY PORTION THEREOF, PURSUANT TO THIS SECTION 2.06 OR SECTION 2.07 OR
2.10 HEREOF, SHALL BE AUTHENTICATED AND DELIVERED IN THE FORM OF, AND SHALL BE,
A GLOBAL NOTE. A GLOBAL NOTE MAY NOT BE EXCHANGED FOR ANOTHER NOTE OTHER THAN AS
PROVIDED IN THIS SECTION 2.06(A), HOWEVER, BENEFICIAL INTERESTS IN A GLOBAL NOTE
MAY BE TRANSFERRED AND EXCHANGED AS PROVIDED IN SECTION 2.06(B), (C) OR (F)
HEREOF.
(B) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. THE TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES
SHALL BE EFFECTED THROUGH THE DEPOSITARY, IN ACCORDANCE WITH THE PROVISIONS OF
THIS INDENTURE AND THE APPLICABLE PROCEDURES. BENEFICIAL INTERESTS IN THE
RESTRICTED GLOBAL NOTES SHALL BE SUBJECT TO RESTRICTIONS ON TRANSFER COMPARABLE
TO THOSE SET FORTH HEREIN TO THE EXTENT REQUIRED BY THE SECURITIES ACT.
TRANSFERS OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES ALSO SHALL REQUIRE
COMPLIANCE WITH EITHER SUBPARAGRAPH (I) OR (II) BELOW, AS APPLICABLE, AS WELL AS
ONE OR MORE OF THE OTHER FOLLOWING SUBPARAGRAPHS, AS APPLICABLE:
(I) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
BENEFICIAL INTERESTS IN ANY RESTRICTED GLOBAL NOTE MAY BE TRANSFERRED TO
PERSONS WHO TAKE DELIVERY THEREOF IN THE FORM OF A BENEFICIAL INTEREST IN
THE SAME RESTRICTED GLOBAL NOTE IN ACCORDANCE WITH THE TRANSFER
RESTRICTIONS SET FORTH IN THE PRIVATE PLACEMENT LEGEND; PROVIDED, HOWEVER,
THAT PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD, TRANSFERS OF
BENEFICIAL INTERESTS IN THE TEMPORARY REGULATION S GLOBAL NOTE MAY NOT BE
MADE TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
(OTHER THAN AN INITIAL PURCHASER). BENEFICIAL INTERESTS IN ANY
UNRESTRICTED GLOBAL NOTE MAY BE TRANSFERRED TO PERSONS WHO TAKE DELIVERY
THEREOF IN THE FORM OF A BENEFICIAL INTEREST
30
IN AN UNRESTRICTED GLOBAL NOTE. NO WRITTEN ORDERS OR INSTRUCTIONS SHALL
BE REQUIRED TO BE DELIVERED TO THE REGISTRAR TO EFFECT THE TRANSFERS
DESCRIBED IN THIS SECTION 2.06(B)(I).
(II) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN GLOBAL
NOTES. IN CONNECTION WITH ALL TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS THAT ARE NOT SUBJECT TO SECTION 2.06(B)(I) ABOVE, THE TRANSFEROR
OF SUCH BENEFICIAL INTEREST MUST DELIVER TO THE REGISTRAR EITHER (A) (1) A
WRITTEN ORDER FROM A PARTICIPANT OR AN INDIRECT PARTICIPANT GIVEN TO THE
DEPOSITARY IN ACCORDANCE WITH THE APPLICABLE PROCEDURES DIRECTING THE
DEPOSITARY TO CREDIT OR CAUSE TO BE CREDITED A BENEFICIAL INTEREST IN
ANOTHER GLOBAL NOTE IN AN AMOUNT EQUAL TO THE BENEFICIAL INTEREST TO BE
TRANSFERRED OR EXCHANGED AND (2) INSTRUCTIONS GIVEN IN ACCORDANCE WITH THE
APPLICABLE PROCEDURES CONTAINING INFORMATION REGARDING THE PARTICIPANT
ACCOUNT TO BE CREDITED WITH SUCH INCREASE OR (B) (1) A WRITTEN ORDER FROM
A PARTICIPANT OR AN INDIRECT PARTICIPANT GIVEN TO THE DEPOSITARY IN
ACCORDANCE WITH THE APPLICABLE PROCEDURES DIRECTING THE DEPOSITARY TO
CAUSE TO BE ISSUED A DEFINITIVE NOTE IN AN AMOUNT EQUAL TO THE BENEFICIAL
INTEREST TO BE TRANSFERRED OR EXCHANGED AND (2) INSTRUCTIONS GIVEN BY THE
DEPOSITARY TO THE REGISTRAR CONTAINING INFORMATION REGARDING THE PERSON IN
WHOSE NAME SUCH DEFINITIVE NOTE SHALL BE REGISTERED TO EFFECT THE TRANSFER
OR EXCHANGE REFERRED TO IN (1) ABOVE; PROVIDED THAT IN NO EVENT SHALL
CERTIFICATED NOTES BE ISSUED UPON THE TRANSFER OR EXCHANGE OF BENEFICIAL
INTERESTS IN THE REGULATION S TEMPORARY GLOBAL NOTE PRIOR TO (X) THE
EXPIRATION OF THE RESTRICTED PERIOD AND (Y) THE RECEIPT BY THE REGISTRAR
OF ANY CERTIFICATES REQUIRED PURSUANT TO RULE 903 UNDER THE SECURITIES
ACT. UPON CONSUMMATION OF AN EXCHANGE OFFER BY THE COMPANY IN ACCORDANCE
WITH SECTION 2.06(F) HEREOF, THE REQUIREMENTS OF THIS SECTION 2.06(B)(II)
SHALL BE DEEMED TO HAVE BEEN SATISFIED UPON RECEIPT BY THE REGISTRAR OF
THE INSTRUCTIONS CONTAINED IN THE LETTER OF TRANSMITTAL DELIVERED BY THE
HOLDER OF SUCH BENEFICIAL INTERESTS IN THE RESTRICTED GLOBAL NOTES. UPON
SATISFACTION OF ALL OF THE REQUIREMENTS FOR TRANSFER OR EXCHANGE OF
BENEFICIAL INTERESTS IN GLOBAL NOTES CONTAINED IN THIS INDENTURE AND THE
NOTES OR OTHERWISE APPLICABLE UNDER THE SECURITIES ACT, THE TRUSTEE SHALL
ADJUST THE PRINCIPAL AMOUNT OF THE RELEVANT GLOBAL NOTE(S) PURSUANT TO
SECTION 2.06(H) HEREOF.
(III) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A BENEFICIAL INTEREST IN ANY RESTRICTED GLOBAL NOTE MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY THEREOF IN THE FORM OF A
BENEFICIAL INTEREST IN ANOTHER RESTRICTED GLOBAL NOTE IF THE TRANSFER
COMPLIES WITH THE REQUIREMENTS OF SECTION 2.06(B)(II) ABOVE AND THE
REGISTRAR RECEIVES THE FOLLOWING:
(A) IF THE TRANSFEREE SHALL TAKE DELIVERY IN THE FORM OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE, THEN THE TRANSFEROR MUST
DELIVER A CERTIFICATE IN THE FORM OF EXHIBIT B HERETO, INCLUDING THE
CERTIFICATIONS IN ITEM (1) THEREOF;
(B) IF THE TRANSFEREE SHALL TAKE DELIVERY IN THE FORM OF A
BENEFICIAL INTEREST IN THE REGULATION S TEMPORARY GLOBAL NOTE OR
REGULATION S GLOBAL NOTE, THEN THE TRANSFEROR MUST DELIVER A
CERTIFICATE IN THE FORM OF EXHIBIT B HERETO, INCLUDING THE
CERTIFICATIONS IN ITEM (2) THEREOF; AND
(C) IF THE TRANSFEREE SHALL TAKE DELIVERY IN THE FORM OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE, THEN THE TRANSFEROR MUST
DELIVER A CERTIFICATE IN THE FORM OF EXHIBIT B HERETO, INCLUDING THE
CERTIFICATIONS AND CERTIFICATES AND
31
OPINION OF COUNSEL REQUIRED BY ITEM (3) THEREOF, IF APPLICABLE.
(IV) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED GLOBAL
NOTE. A BENEFICIAL INTEREST IN ANY RESTRICTED GLOBAL NOTE MAY BE EXCHANGED
BY ANY HOLDER THEREOF FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE OR TRANSFERRED TO A PERSON WHO TAKES DELIVERY THEREOF IN THE FORM OF
A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE IF THE EXCHANGE OR
TRANSFER COMPLIES WITH THE REQUIREMENTS OF SECTION 2.06(B)(II) ABOVE AND:
(A) SUCH EXCHANGE OR TRANSFER IS EFFECTED PURSUANT TO THE
EXCHANGE OFFER IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT
AND THE HOLDER OF THE BENEFICIAL INTEREST TO BE TRANSFERRED, IN THE
CASE OF AN EXCHANGE, OR THE TRANSFEREE, IN THE CASE OF A TRANSFER,
CERTIFIES IN THE APPLICABLE LETTER OF TRANSMITTAL THAT IT IS NOT (1)
A BROKER-DEALER, (2) A PERSON PARTICIPATING IN THE DISTRIBUTION OF
THE EXCHANGE NOTES OR (3) A PERSON WHO IS AN AFFILIATE (AS DEFINED IN
RULE 144) OF THE COMPANY;
(B) SUCH TRANSFER IS EFFECTED PURSUANT TO THE SHELF
REGISTRATION STATEMENT IN ACCORDANCE WITH THE REGISTRATION RIGHTS
AGREEMENT;
(C) SUCH TRANSFER IS EFFECTED BY A BROKER-DEALER PURSUANT
TO THE EXCHANGE OFFER REGISTRATION STATEMENT IN ACCORDANCE WITH THE
REGISTRATION RIGHTS AGREEMENT; OR
(D) THE REGISTRAR RECEIVES THE FOLLOWING:
(1) IF THE HOLDER OF SUCH BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE PROPOSES TO EXCHANGE SUCH BENEFICIAL
INTEREST FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE, A CERTIFICATE FROM SUCH HOLDER IN THE FORM OF EXHIBIT C
HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (1)(A) THEREOF; OR
(2) IF THE HOLDER OF SUCH BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE PROPOSES TO TRANSFER SUCH BENEFICIAL
INTEREST TO A PERSON WHO SHALL TAKE DELIVERY THEREOF IN THE
FORM OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE, A
CERTIFICATE FROM SUCH HOLDER IN THE FORM OF EXHIBIT B HERETO,
INCLUDING THE CERTIFICATIONS IN ITEM (4) THEREOF;
AND, IN EACH SUCH CASE SET FORTH IN THIS SUBPARAGRAPH (D),
IF THE REGISTRAR SO REQUESTS OR IF THE APPLICABLE PROCEDURES SO
REQUIRE, AN OPINION OF COUNSEL IN FORM REASONABLY ACCEPTABLE TO THE
REGISTRAR TO THE EFFECT THAT SUCH EXCHANGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND THAT THE RESTRICTIONS ON
TRANSFER CONTAINED HEREIN AND IN THE PRIVATE PLACEMENT LEGEND ARE NO
LONGER REQUIRED IN ORDER TO MAINTAIN COMPLIANCE WITH THE SECURITIES
ACT.
IF ANY SUCH TRANSFER IS EFFECTED PURSUANT TO SUBPARAGRAPH (B)
OR (D) ABOVE AT A TIME WHEN AN UNRESTRICTED GLOBAL NOTE HAS NOT YET BEEN
ISSUED, THE COMPANY SHALL ISSUE AND, UPON RECEIPT OF AN AUTHENTICATION
ORDER IN ACCORDANCE WITH SECTION 2.02 HEREOF, THE TRUSTEE SHALL
AUTHENTICATE ONE OR MORE UNRESTRICTED GLOBAL NOTES IN AN AGGREGATE
PRINCIPAL AMOUNT EQUAL TO THE AGGREGATE PRINCIPAL AMOUNT OF BENEFICIAL
INTERESTS TRANSFERRED PURSUANT TO SUBPARAGRAPH (B) OR (D) ABOVE.
32
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE CANNOT BE
EXCHANGED FOR, OR TRANSFERRED TO PERSONS WHO TAKE DELIVERY THEREOF IN THE
FORM OF, A BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE.
(C) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR CERTIFICATED
NOTES.
(I) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. IF ANY HOLDER OF A BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE PROPOSES TO EXCHANGE SUCH BENEFICIAL INTEREST FOR A
RESTRICTED DEFINITIVE NOTE OR TO TRANSFER SUCH BENEFICIAL INTEREST TO A
PERSON WHO TAKES DELIVERY THEREOF IN THE FORM OF A RESTRICTED DEFINITIVE
NOTE, THEN, UPON RECEIPT BY THE REGISTRAR OF THE FOLLOWING DOCUMENTATION:
(A) IF THE HOLDER OF SUCH BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE PROPOSES TO EXCHANGE SUCH BENEFICIAL INTEREST
FOR A RESTRICTED DEFINITIVE NOTE, A CERTIFICATE FROM SUCH HOLDER IN
THE FORM OF EXHIBIT C HERETO, INCLUDING THE CERTIFICATIONS IN ITEM
(2)(A) THEREOF;
(B) IF SUCH BENEFICIAL INTEREST IS BEING TRANSFERRED TO A
QIB IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT, A
CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT B HERETO, INCLUDING
THE CERTIFICATIONS IN ITEM (1) THEREOF;
(C) IF SUCH BENEFICIAL INTEREST IS BEING TRANSFERRED TO A
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
903 OR RULE 904 UNDER THE SECURITIES ACT, A CERTIFICATE TO THE EFFECT
SET FORTH IN EXHIBIT B HERETO, INCLUDING THE CERTIFICATIONS IN ITEM
(2) THEREOF;
(D) IF SUCH BENEFICIAL INTEREST IS BEING TRANSFERRED
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT,
A CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT B HERETO, INCLUDING
THE CERTIFICATIONS IN ITEM (3)(A) THEREOF;
(E) IF SUCH BENEFICIAL INTEREST IS BEING TRANSFERRED TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN RELIANCE ON AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OTHER THAN THOSE
LISTED IN SUBPARAGRAPHS (B) THROUGH (D) ABOVE, A CERTIFICATE TO THE
EFFECT SET FORTH IN EXHIBIT B HERETO, INCLUDING THE CERTIFICATIONS,
CERTIFICATES AND OPINION OF COUNSEL REQUIRED BY ITEM (3) THEREOF, IF
APPLICABLE;
(F) IF SUCH BENEFICIAL INTEREST IS BEING TRANSFERRED TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, A CERTIFICATE TO THE EFFECT
SET FORTH IN EXHIBIT B HERETO, INCLUDING THE CERTIFICATIONS IN ITEM
(3)(B) THEREOF; OR
(G) IF SUCH BENEFICIAL INTEREST IS BEING TRANSFERRED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, A CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT B HERETO,
INCLUDING THE CERTIFICATIONS IN ITEM (3)(C) THEREOF,
THE TRUSTEE SHALL CAUSE THE AGGREGATE PRINCIPAL AMOUNT OF THE
APPLICABLE GLOBAL NOTE TO BE REDUCED ACCORDINGLY PURSUANT TO SECTION 2.06(H)
HEREOF, AND THE COMPANY SHALL EXECUTE AND THE TRUSTEE SHALL AUTHENTICATE AND
DELIVER TO THE PERSON DESIGNATED IN
33
THE INSTRUCTIONS A DEFINITIVE NOTE IN THE APPROPRIATE PRINCIPAL AMOUNT. ANY
DEFINITIVE NOTE ISSUED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE PURSUANT TO THIS SECTION 2.06(C) SHALL BE REGISTERED IN SUCH NAME OR
NAMES AND IN SUCH AUTHORIZED DENOMINATION OR DENOMINATIONS AS THE HOLDER OF SUCH
BENEFICIAL INTEREST SHALL INSTRUCT THE REGISTRAR THROUGH INSTRUCTIONS FROM THE
DEPOSITARY AND THE PARTICIPANT OR INDIRECT PARTICIPANT. THE TRUSTEE SHALL
DELIVER SUCH CERTIFICATED NOTES TO THE PERSONS IN WHOSE NAMES SUCH NOTES ARE SO
REGISTERED. ANY DEFINITIVE NOTE ISSUED IN EXCHANGE FOR A BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE PURSUANT TO THIS SECTION 2.06(C)(I) SHALL BEAR THE
PRIVATE PLACEMENT LEGEND AND SHALL BE SUBJECT TO ALL RESTRICTIONS ON TRANSFER
CONTAINED THEREIN.
(II) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY GLOBAL
NOTE TO DEFINITIVE NOTES. NOTWITHSTANDING SECTIONS 2.06(C)(I)(A) AND (C)
HEREOF, A BENEFICIAL INTEREST IN THE REGULATION S TEMPORARY GLOBAL NOTE
MAY NOT BE EXCHANGED FOR A DEFINITIVE NOTE OR TRANSFERRED TO A PERSON WHO
TAKES DELIVERY THEREOF IN THE FORM OF A DEFINITIVE NOTE PRIOR TO (X) THE
EXPIRATION OF THE RESTRICTED PERIOD AND (Y) THE RECEIPT BY THE REGISTRAR
OF ANY CERTIFICATES REQUIRED PURSUANT TO RULE 903(B)(3)(II)(B) UNDER THE
SECURITIES ACT, EXCEPT IN THE CASE OF A TRANSFER PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OTHER THAN RULE
903 OR RULE 904.
(III) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A HOLDER OF A BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE MAY EXCHANGE SUCH BENEFICIAL INTEREST FOR AN
UNRESTRICTED DEFINITIVE NOTE OR MAY TRANSFER SUCH BENEFICIAL INTEREST TO A
PERSON WHO TAKES DELIVERY THEREOF IN THE FORM OF AN UNRESTRICTED
DEFINITIVE NOTE ONLY IF:
(A) SUCH EXCHANGE OR TRANSFER IS EFFECTED PURSUANT TO THE
EXCHANGE OFFER IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT
AND THE HOLDER OF SUCH BENEFICIAL INTEREST, IN THE CASE OF AN
EXCHANGE, OR THE TRANSFEREE, IN THE CASE OF A TRANSFER, CERTIFIES IN
THE APPLICABLE LETTER OF TRANSMITTAL THAT IT IS NOT (1) A
BROKER-DEALER, (2) A PERSON PARTICIPATING IN THE DISTRIBUTION OF THE
EXCHANGE NOTES OR (3) A PERSON WHO IS AN AFFILIATE (AS DEFINED IN
RULE 144) OF THE COMPANY;
(B) SUCH TRANSFER IS EFFECTED PURSUANT TO THE SHELF
REGISTRATION STATEMENT IN ACCORDANCE WITH THE REGISTRATION RIGHTS
AGREEMENT;
(C) SUCH TRANSFER IS EFFECTED BY A BROKER-DEALER PURSUANT
TO THE EXCHANGE OFFER REGISTRATION STATEMENT IN ACCORDANCE WITH THE
REGISTRATION RIGHTS AGREEMENT; OR
(D) THE REGISTRAR RECEIVES THE FOLLOWING:
(1) IF THE HOLDER OF SUCH BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE PROPOSES TO EXCHANGE SUCH BENEFICIAL
INTEREST FOR A DEFINITIVE NOTE THAT DOES NOT BEAR THE PRIVATE
PLACEMENT LEGEND, A CERTIFICATE FROM SUCH HOLDER IN THE FORM OF
EXHIBIT C HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (1)(B)
THEREOF; OR
(2) IF THE HOLDER OF SUCH BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE PROPOSES TO TRANSFER SUCH BENEFICIAL
INTEREST TO A PERSON WHO SHALL TAKE DELIVERY THEREOF IN THE
FORM OF A DEFINITIVE NOTE THAT DOES NOT BEAR THE
34
PRIVATE PLACEMENT LEGEND, A CERTIFICATE FROM SUCH HOLDER IN
THE FORM OF EXHIBIT B HERETO, INCLUDING THE CERTIFICATIONS IN
ITEM (4) THEREOF;
AND, IN EACH SUCH CASE SET FORTH IN THIS SUBPARAGRAPH (D),
IF THE REGISTRAR SO REQUESTS OR IF THE APPLICABLE PROCEDURES SO
REQUIRE, AN OPINION OF COUNSEL IN FORM REASONABLY ACCEPTABLE TO THE
REGISTRAR TO THE EFFECT THAT SUCH EXCHANGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND THAT THE RESTRICTIONS ON
TRANSFER CONTAINED HEREIN AND IN THE PRIVATE PLACEMENT LEGEND ARE NO
LONGER REQUIRED IN ORDER TO MAINTAIN COMPLIANCE WITH THE SECURITIES
ACT.
(IV) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. IF ANY HOLDER OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE PROPOSES TO EXCHANGE SUCH BENEFICIAL INTEREST
FOR A DEFINITIVE NOTE OR TO TRANSFER SUCH BENEFICIAL INTEREST TO A PERSON
WHO TAKES DELIVERY THEREOF IN THE FORM OF A DEFINITIVE NOTE, THEN, UPON
SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 2.06(B)(II) HEREOF,
THE TRUSTEE SHALL CAUSE THE AGGREGATE PRINCIPAL AMOUNT OF THE APPLICABLE
GLOBAL NOTE TO BE REDUCED ACCORDINGLY PURSUANT TO SECTION 2.06(H) HEREOF,
AND THE COMPANY SHALL EXECUTE AND THE TRUSTEE SHALL AUTHENTICATE AND
DELIVER TO THE PERSON DESIGNATED IN THE INSTRUCTIONS A DEFINITIVE NOTE IN
THE APPROPRIATE PRINCIPAL AMOUNT. ANY DEFINITIVE NOTE ISSUED IN EXCHANGE
FOR A BENEFICIAL INTEREST PURSUANT TO THIS SECTION 2.06(C)(IV) SHALL BE
REGISTERED IN SUCH NAME OR NAMES AND IN SUCH AUTHORIZED DENOMINATION OR
DENOMINATIONS AS THE HOLDER OF SUCH BENEFICIAL INTEREST SHALL INSTRUCT THE
REGISTRAR THROUGH INSTRUCTIONS FROM THE DEPOSITARY AND THE PARTICIPANT OR
INDIRECT PARTICIPANT. THE TRUSTEE SHALL DELIVER SUCH DEFINITIVE NOTES TO
THE PERSONS IN WHOSE NAMES SUCH NOTES ARE SO REGISTERED. ANY DEFINITIVE
NOTE ISSUED IN EXCHANGE FOR A BENEFICIAL INTEREST PURSUANT TO THIS SECTION
2.06(C)(IV) SHALL NOT BEAR THE PRIVATE PLACEMENT LEGEND.
(D) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(I) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. IF ANY HOLDER OF A RESTRICTED DEFINITIVE NOTE
PROPOSES TO EXCHANGE SUCH NOTE FOR A BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE OR TO TRANSFER SUCH RESTRICTED DEFINITIVE NOTES TO A PERSON
WHO TAKES DELIVERY THEREOF IN THE FORM OF A BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE, THEN, UPON RECEIPT BY THE REGISTRAR OF THE
FOLLOWING DOCUMENTATION:
(A) IF THE HOLDER OF SUCH RESTRICTED DEFINITIVE NOTE
PROPOSES TO EXCHANGE SUCH NOTE FOR A BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE, A CERTIFICATE FROM SUCH HOLDER IN THE FORM OF
EXHIBIT C HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (2)(B)
THEREOF;
(B) IF SUCH RESTRICTED DEFINITIVE NOTE IS BEING
TRANSFERRED TO A QIB IN ACCORDANCE WITH RULE 144A UNDER THE
SECURITIES ACT, A CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT B
HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (1) THEREOF;
(C) IF SUCH RESTRICTED DEFINITIVE NOTE IS BEING
TRANSFERRED TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, A
CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT B HERETO, INCLUDING
THE CERTIFICATIONS IN ITEM (2) THEREOF;
35
(D) IF SUCH RESTRICTED DEFINITIVE NOTE IS BEING
TRANSFERRED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IN ACCORDANCE WITH RULE 144 UNDER
THE SECURITIES ACT, A CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT
B HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (3)(A) THEREOF;
(E) IF SUCH RESTRICTED DEFINITIVE NOTE IS BEING
TRANSFERRED TO AN INSTITUTIONAL ACCREDITED INVESTOR IN RELIANCE ON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OTHER THAN THOSE LISTED IN SUBPARAGRAPHS (B) THROUGH (D) ABOVE, A
CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT B HERETO, INCLUDING
THE CERTIFICATIONS, CERTIFICATES AND OPINION OF COUNSEL REQUIRED BY
ITEM (3) THEREOF, IF APPLICABLE;
(F) IF SUCH RESTRICTED DEFINITIVE NOTE IS BEING
TRANSFERRED TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, A CERTIFICATE
TO THE EFFECT SET FORTH IN EXHIBIT B HERETO, INCLUDING THE
CERTIFICATIONS IN ITEM (3)(B) THEREOF; OR
(G) IF SUCH RESTRICTED DEFINITIVE NOTE IS BEING
TRANSFERRED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, A CERTIFICATE TO THE EFFECT SET FORTH IN EXHIBIT B
HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (3)(C) THEREOF,
THE TRUSTEE SHALL CANCEL THE RESTRICTED DEFINITIVE NOTE,
INCREASE OR CAUSE TO BE INCREASED THE AGGREGATE PRINCIPAL AMOUNT OF, IN
THE CASE OF CLAUSE (A) ABOVE, THE APPROPRIATE RESTRICTED GLOBAL NOTE, IN
THE CASE OF CLAUSE (B) ABOVE, THE 144A GLOBAL NOTE, IN THE CASE OF CLAUSE
(C) ABOVE, THE REGULATION S GLOBAL NOTE, AND IN ALL OTHER CASES, THE IAI
GLOBAL NOTE.
(II)RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A HOLDER OF A RESTRICTED DEFINITIVE NOTE MAY
EXCHANGE SUCH NOTE FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE OR TRANSFER SUCH RESTRICTED DEFINITIVE NOTE TO A PERSON WHO TAKES
DELIVERY THEREOF IN THE FORM OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE ONLY IF:
(A) SUCH EXCHANGE OR TRANSFER IS EFFECTED PURSUANT TO THE
EXCHANGE OFFER IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT
AND THE HOLDER, IN THE CASE OF AN EXCHANGE, OR THE TRANSFEREE, IN THE
CASE OF A TRANSFER, CERTIFIES IN THE APPLICABLE LETTER OF TRANSMITTAL
THAT IT IS NOT (1) A BROKER-DEALER, (2) A PERSON PARTICIPATING IN THE
DISTRIBUTION OF THE EXCHANGE NOTES OR (3) A PERSON WHO IS AN
AFFILIATE (AS DEFINED IN RULE 144) OF THE COMPANY;
(B) SUCH TRANSFER IS EFFECTED PURSUANT TO THE SHELF
REGISTRATION STATEMENT IN ACCORDANCE WITH THE REGISTRATION RIGHTS
AGREEMENT;
(C) SUCH TRANSFER IS EFFECTED BY A BROKER-DEALER PURSUANT
TO THE EXCHANGE OFFER REGISTRATION STATEMENT IN ACCORDANCE WITH THE
REGISTRATION RIGHTS AGREEMENT; OR
(D) THE REGISTRAR RECEIVES THE FOLLOWING:
(1) IF THE HOLDER OF SUCH DEFINITIVE NOTES PROPOSES
TO EXCHANGE SUCH NOTES FOR A BENEFICIAL INTEREST IN THE
UNRESTRICTED GLOBAL NOTE, A
36
CERTIFICATE FROM SUCH HOLDER IN THE FORM OF EXHIBIT C HERETO,
INCLUDING THE CERTIFICATIONS IN ITEM (1)(C) THEREOF; OR
(2) IF THE HOLDER OF SUCH DEFINITIVE NOTES PROPOSES
TO TRANSFER SUCH NOTES TO A PERSON WHO SHALL TAKE DELIVERY
THEREOF IN THE FORM OF A BENEFICIAL INTEREST IN THE
UNRESTRICTED GLOBAL NOTE, A CERTIFICATE FROM SUCH HOLDER IN THE
FORM OF EXHIBIT B HERETO, INCLUDING THE CERTIFICATIONS IN ITEM
(4) THEREOF;
AND, IN EACH SUCH CASE SET FORTH IN THIS SUBPARAGRAPH (D),
IF THE REGISTRAR SO REQUESTS OR IF THE APPLICABLE PROCEDURES SO
REQUIRE, AN OPINION OF COUNSEL IN FORM REASONABLY ACCEPTABLE TO THE
REGISTRAR TO THE EFFECT THAT SUCH EXCHANGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND THAT THE RESTRICTIONS ON
TRANSFER CONTAINED HEREIN AND IN THE PRIVATE PLACEMENT LEGEND ARE NO
LONGER REQUIRED IN ORDER TO MAINTAIN COMPLIANCE WITH THE SECURITIES
ACT.
UPON SATISFACTION OF THE CONDITIONS OF ANY OF THE SUBPARAGRAPHS
IN THIS SECTION 2.06(D)(II), THE TRUSTEE SHALL CANCEL THE DEFINITIVE NOTES
AND INCREASE OR CAUSE TO BE INCREASED THE AGGREGATE PRINCIPAL AMOUNT OF
THE UNRESTRICTED GLOBAL NOTE.
(III) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A HOLDER OF AN UNRESTRICTED DEFINITIVE NOTE MAY
EXCHANGE SUCH NOTE FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE OR TRANSFER SUCH DEFINITIVE NOTES TO A PERSON WHO TAKES DELIVERY
THEREOF IN THE FORM OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE AT ANY TIME. UPON RECEIPT OF A REQUEST FOR SUCH AN EXCHANGE OR
TRANSFER, THE TRUSTEE SHALL CANCEL THE APPLICABLE UNRESTRICTED DEFINITIVE
NOTE AND INCREASE OR CAUSE TO BE INCREASED THE AGGREGATE PRINCIPAL AMOUNT
OF ONE OF THE UNRESTRICTED GLOBAL NOTES.
IF ANY SUCH EXCHANGE OR TRANSFER FROM A DEFINITIVE NOTE TO A
BENEFICIAL INTEREST IS EFFECTED PURSUANT TO SUBPARAGRAPHS (II)(B), (II)(D)
OR (III) ABOVE AT A TIME WHEN AN UNRESTRICTED GLOBAL NOTE HAS NOT YET BEEN
ISSUED, THE COMPANY SHALL ISSUE AND, UPON RECEIPT OF AN AUTHENTICATION
ORDER IN ACCORDANCE WITH SECTION 2.02 HEREOF, THE TRUSTEE SHALL
AUTHENTICATE ONE OR MORE UNRESTRICTED GLOBAL NOTES IN AN AGGREGATE
PRINCIPAL AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF DEFINITIVE NOTES SO
TRANSFERRED.
(E) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
UPON REQUEST BY A HOLDER OF DEFINITIVE NOTES AND SUCH HOLDER'S COMPLIANCE WITH
THE PROVISIONS OF THIS SECTION 2.06(E), THE REGISTRAR SHALL REGISTER THE
TRANSFER OR EXCHANGE OF DEFINITIVE NOTES. PRIOR TO SUCH REGISTRATION OF TRANSFER
OR EXCHANGE, THE REQUESTING HOLDER SHALL PRESENT OR SURRENDER TO THE REGISTRAR
THE DEFINITIVE NOTES DULY ENDORSED OR ACCOMPANIED BY A WRITTEN INSTRUCTION OF
TRANSFER IN FORM SATISFACTORY TO THE REGISTRAR DULY EXECUTED BY SUCH HOLDER OR
BY ITS ATTORNEY, DULY AUTHORIZED IN WRITING. IN ADDITION, THE REQUESTING HOLDER
SHALL PROVIDE ANY ADDITIONAL CERTIFICATIONS, DOCUMENTS AND INFORMATION, AS
APPLICABLE, REQUIRED PURSUANT TO THE FOLLOWING PROVISIONS OF THIS SECTION
2.06(E).
(I) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES.
ANY RESTRICTED DEFINITIVE NOTE MAY BE TRANSFERRED TO AND REGISTERED IN THE
NAME OF PERSONS WHO TAKE DELIVERY THEREOF IN THE FORM OF A RESTRICTED
DEFINITIVE NOTE IF THE REGISTRAR RECEIVES THE FOLLOWING:
37
(A) IF THE TRANSFER WILL BE MADE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, THEN THE TRANSFEROR MUST DELIVER A
CERTIFICATE IN THE FORM OF EXHIBIT B HERETO, INCLUDING THE
CERTIFICATIONS IN ITEM (1) THEREOF;
(B) IF THE TRANSFER WILL BE MADE PURSUANT TO RULE 903 OR
RULE 904, THEN THE TRANSFEROR MUST DELIVER A CERTIFICATE IN THE FORM
OF EXHIBIT B HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (2)
THEREOF; AND
(C) IF THE TRANSFER WILL BE MADE PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
THEN THE TRANSFEROR MUST DELIVER A CERTIFICATE IN THE FORM OF EXHIBIT
B HERETO, INCLUDING THE CERTIFICATIONS, CERTIFICATES AND OPINION OF
COUNSEL REQUIRED BY ITEM (3) THEREOF, IF APPLICABLE.
(II) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. ANY RESTRICTED DEFINITIVE NOTE MAY BE EXCHANGED BY THE HOLDER
THEREOF FOR AN UNRESTRICTED DEFINITIVE NOTE OR TRANSFERRED TO A PERSON OR
PERSONS WHO TAKE DELIVERY THEREOF IN THE FORM OF AN UNRESTRICTED
DEFINITIVE NOTE IF:
(A) SUCH EXCHANGE OR TRANSFER IS EFFECTED PURSUANT TO THE
EXCHANGE OFFER IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT
AND THE HOLDER, IN THE CASE OF AN EXCHANGE, OR THE TRANSFEREE, IN THE
CASE OF A TRANSFER, CERTIFIES IN THE APPLICABLE LETTER OF TRANSMITTAL
THAT IT IS NOT (1) A BROKER-DEALER, (2) A PERSON PARTICIPATING IN THE
DISTRIBUTION OF THE EXCHANGE NOTES OR (3) A PERSON WHO IS AN
AFFILIATE (AS DEFINED IN RULE 144) OF THE COMPANY;
(B) ANY SUCH TRANSFER IS EFFECTED PURSUANT TO THE SHELF
REGISTRATION STATEMENT IN ACCORDANCE WITH THE REGISTRATION RIGHTS
AGREEMENT;
(C) ANY SUCH TRANSFER IS EFFECTED BY A BROKER-DEALER
PURSUANT TO THE EXCHANGE OFFER REGISTRATION STATEMENT IN ACCORDANCE
WITH THE REGISTRATION RIGHTS AGREEMENT; OR
(D) THE REGISTRAR RECEIVES THE FOLLOWING:
(1) IF THE HOLDER OF SUCH RESTRICTED DEFINITIVE
NOTES PROPOSES TO EXCHANGE SUCH NOTES FOR AN UNRESTRICTED
DEFINITIVE NOTE, A CERTIFICATE FROM SUCH HOLDER IN THE FORM OF
EXHIBIT C HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (1)(D)
THEREOF; OR
(2) IF THE HOLDER OF SUCH RESTRICTED DEFINITIVE
NOTES PROPOSES TO TRANSFER SUCH NOTES TO A PERSON WHO SHALL
TAKE DELIVERY THEREOF IN THE FORM OF AN UNRESTRICTED DEFINITIVE
NOTE, A CERTIFICATE FROM SUCH HOLDER IN THE FORM OF EXHIBIT B
HERETO, INCLUDING THE CERTIFICATIONS IN ITEM (4) THEREOF;
AND, IN EACH SUCH CASE SET FORTH IN THIS SUBPARAGRAPH (D),
IF THE REGISTRAR SO REQUESTS, AN OPINION OF COUNSEL IN FORM
REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH EXCHANGE
OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND THAT THE
RESTRICTIONS ON TRANSFER CONTAINED HEREIN AND IN THE PRIVATE
PLACEMENT LEGEND ARE NO LONGER REQUIRED IN ORDER TO MAINTAIN
COMPLIANCE WITH THE SECURITIES ACT.
38
(III) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A HOLDER OF UNRESTRICTED DEFINITIVE NOTES MAY TRANSFER SUCH NOTES
TO A PERSON WHO TAKES DELIVERY THEREOF IN THE FORM OF AN UNRESTRICTED
DEFINITIVE NOTE. UPON RECEIPT OF A REQUEST TO REGISTER SUCH A TRANSFER,
THE REGISTRAR SHALL REGISTER THE UNRESTRICTED DEFINITIVE NOTES PURSUANT TO
THE INSTRUCTIONS FROM THE HOLDER THEREOF.
(F) EXCHANGE OFFER. UPON THE OCCURRENCE OF THE EXCHANGE OFFER IN
ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT, THE COMPANY SHALL ISSUE AND,
UPON RECEIPT OF AN AUTHENTICATION ORDER IN ACCORDANCE WITH SECTION 2.02, THE
TRUSTEE SHALL AUTHENTICATE (I) ONE OR MORE UNRESTRICTED GLOBAL NOTES IN AN
AGGREGATE PRINCIPAL AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF THE BENEFICIAL
INTERESTS IN THE RESTRICTED GLOBAL NOTES TENDERED FOR ACCEPTANCE BY PERSONS THAT
CERTIFY IN THE APPLICABLE LETTERS OF TRANSMITTAL THAT (X) THEY ARE NOT
BROKER-DEALERS, (Y) THEY ARE NOT PARTICIPATING IN A DISTRIBUTION OF THE EXCHANGE
NOTES AND (Z) THEY ARE NOT AFFILIATES (AS DEFINED IN RULE 144) OF THE COMPANY,
AND ACCEPTED FOR EXCHANGE IN THE EXCHANGE OFFER AND (II) DEFINITIVE NOTES IN AN
AGGREGATE PRINCIPAL AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF THE RESTRICTED
DEFINITIVE NOTES ACCEPTED FOR EXCHANGE IN THE EXCHANGE OFFER. CONCURRENTLY WITH
THE ISSUANCE OF SUCH NOTES, THE TRUSTEE SHALL CAUSE THE AGGREGATE PRINCIPAL
AMOUNT OF THE APPLICABLE RESTRICTED GLOBAL NOTES TO BE REDUCED ACCORDINGLY, AND
THE COMPANY SHALL EXECUTE AND THE TRUSTEE SHALL AUTHENTICATE AND DELIVER TO THE
PERSONS DESIGNATED BY THE HOLDERS OF DEFINITIVE NOTES SO ACCEPTED DEFINITIVE
NOTES IN THE APPROPRIATE PRINCIPAL AMOUNT.
(G) LEGENDS. THE FOLLOWING LEGENDS SHALL APPEAR ON THE FACE OF ALL
GLOBAL NOTES AND DEFINITIVE NOTES ISSUED UNDER THIS INDENTURE UNLESS
SPECIFICALLY STATED OTHERWISE IN THE APPLICABLE PROVISIONS OF THIS INDENTURE.
(I) PRIVATE PLACEMENT LEGEND.
(A) EXCEPT AS PERMITTED BY SUBPARAGRAPH (B) BELOW, EACH
GLOBAL NOTE AND EACH DEFINITIVE NOTE (AND ALL NOTES ISSUED IN
EXCHANGE THEREFOR OR SUBSTITUTION THEREOF) SHALL BEAR THE LEGEND IN
SUBSTANTIALLY THE FOLLOWING FORM:
"THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED, AND THE NOTE EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER
OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) (A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (B) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
39
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE NOTES (THE FORM OF SUCH LETTER CAN BE OBTAINED FROM
THE TRUSTEE) OR (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT IN THE CASE OF A TRANSFER
PURSUANT TO CLAUSE (E) SUCH TRANSFER IS EFFECTED BY THE DELIVERY TO THE
TRANSFEREE OF DEFINITIVE SECURITIES REGISTERED IN ITS NAME (OR ITS NOMINEES
NAME) IN THE BOOKS MAINTAINED BY THE REGISTRAR, AND IS SUBJECT TO THE RECEIPT BY
THE REGISTRAR (AND THE COMPANY, IF IT SO REQUESTS) OF A CERTIFICATION OF THE
TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (II) TO THE COMPANY OR (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) NOTWITHSTANDING THE FOREGOING, ANY GLOBAL NOTE OR
DEFINITIVE NOTE ISSUED PURSUANT TO SUBPARAGRAPHS (B)(IV), (C)(III),
(C)(IV), (D)(II), (D)(III), (E)(II), (E)(III) OR (F) TO THIS SECTION
2.06 (AND ALL NOTES ISSUED IN EXCHANGE THEREFOR OR SUBSTITUTION
THEREOF) SHALL NOT BEAR THE PRIVATE PLACEMENT LEGEND.
(II) GLOBAL NOTE LEGEND. EACH GLOBAL NOTE SHALL BEAR A LEGEND
IN SUBSTANTIALLY THE FOLLOWING FORM:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(III) REGULATION S TEMPORARY GLOBAL NOTE LEGEND. THE REGULATION
S TEMPORARY GLOBAL NOTE SHALL BEAR A LEGEND IN SUBSTANTIALLY THE FOLLOWING
FORM:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(I) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. AT SUCH TIME AS
ALL BENEFICIAL INTERESTS IN A PARTICULAR GLOBAL NOTE HAVE BEEN EXCHANGED FOR
DEFINITIVE NOTES OR A PARTICULAR GLOBAL NOTE HAS BEEN REDEEMED, REPURCHASED OR
CANCELED IN WHOLE AND NOT IN PART, EACH SUCH GLOBAL NOTE SHALL BE RETURNED TO OR
RETAINED AND CANCELED BY THE TRUSTEE IN ACCORDANCE WITH SECTION 2.11 HEREOF. AT
ANY TIME PRIOR TO SUCH CANCELLATION, IF
40
ANY BENEFICIAL INTEREST IN A GLOBAL NOTE IS EXCHANGED FOR OR TRANSFERRED TO A
PERSON WHO WILL TAKE DELIVERY THEREOF IN THE FORM OF A BENEFICIAL INTEREST IN
ANOTHER GLOBAL NOTE OR FOR DEFINITIVE NOTES, THE PRINCIPAL AMOUNT OF NOTES
REPRESENTED BY SUCH GLOBAL NOTE SHALL BE REDUCED ACCORDINGLY AND AN ENDORSEMENT
SHALL BE MADE ON SUCH GLOBAL NOTE BY THE TRUSTEE OR BY THE DEPOSITARY AT THE
DIRECTION OF THE TRUSTEE TO REFLECT SUCH REDUCTION; AND IF THE BENEFICIAL
INTEREST IS BEING EXCHANGED FOR OR TRANSFERRED TO A PERSON WHO WILL TAKE
DELIVERY THEREOF IN THE FORM OF A BENEFICIAL INTEREST IN ANOTHER GLOBAL NOTE,
SUCH OTHER GLOBAL NOTE SHALL BE INCREASED ACCORDINGLY AND AN ENDORSEMENT SHALL
BE MADE ON SUCH GLOBAL NOTE BY THE TRUSTEE OR BY THE DEPOSITARY AT THE DIRECTION
OF THE TRUSTEE TO REFLECT SUCH INCREASE.
(J) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(I) TO PERMIT REGISTRATIONS OF TRANSFERS AND EXCHANGES, THE
COMPANY SHALL EXECUTE AND THE TRUSTEE SHALL AUTHENTICATE GLOBAL NOTES AND
DEFINITIVE NOTES UPON THE COMPANY'S ORDER OR AT THE REGISTRAR'S REQUEST.
(II) NO SERVICE CHARGE SHALL BE MADE TO A HOLDER OF A
BENEFICIAL INTEREST IN A GLOBAL NOTE OR TO A HOLDER OF A DEFINITIVE NOTE
FOR ANY REGISTRATION OF TRANSFER OR EXCHANGE, BUT THE COMPANY MAY REQUIRE
PAYMENT OF A SUM SUFFICIENT TO COVER ANY TRANSFER TAX OR SIMILAR
GOVERNMENTAL CHARGE PAYABLE IN CONNECTION THEREWITH (OTHER THAN ANY SUCH
TRANSFER TAXES OR SIMILAR GOVERNMENTAL CHARGE PAYABLE UPON EXCHANGE OR
TRANSFER PURSUANT TO SECTIONS 2.10, 3.06, 3.09, 4.10, 4.15 AND 9.05
HEREOF).
(III) THE REGISTRAR SHALL NOT BE REQUIRED TO REGISTER THE
TRANSFER OF OR EXCHANGE ANY NOTE SELECTED FOR REDEMPTION IN WHOLE OR IN
PART, EXCEPT THE UNREDEEMED PORTION OF ANY NOTE BEING REDEEMED IN PART.
(IV) ALL GLOBAL NOTES AND DEFINITIVE NOTES ISSUED UPON ANY
REGISTRATION OF TRANSFER OR EXCHANGE OF GLOBAL NOTES OR DEFINITIVE NOTES
SHALL BE THE VALID OBLIGATIONS OF THE COMPANY, EVIDENCING THE SAME DEBT,
AND ENTITLED TO THE SAME BENEFITS UNDER THIS INDENTURE, AS THE GLOBAL
NOTES OR DEFINITIVE NOTES SURRENDERED UPON SUCH REGISTRATION OF TRANSFER
OR EXCHANGE.
(V) THE COMPANY SHALL NOT BE REQUIRED (A) TO ISSUE, TO REGISTER
THE TRANSFER OF OR TO EXCHANGE ANY NOTES DURING A PERIOD BEGINNING AT THE
OPENING OF BUSINESS 15 DAYS BEFORE THE DAY OF ANY SELECTION OF NOTES FOR
REDEMPTION UNDER SECTION 3.02 HEREOF AND ENDING AT THE CLOSE OF BUSINESS
ON THE DAY OF SELECTION, (B) TO REGISTER THE TRANSFER OF OR TO EXCHANGE
ANY NOTE SO SELECTED FOR REDEMPTION IN WHOLE OR IN PART, EXCEPT THE
UNREDEEMED PORTION OF ANY NOTE BEING REDEEMED IN PART OR (C) TO REGISTER
THE TRANSFER OF OR TO EXCHANGE A NOTE BETWEEN A RECORD DATE AND THE NEXT
SUCCEEDING INTEREST PAYMENT DATE.
(VI) PRIOR TO DUE PRESENTMENT FOR THE REGISTRATION OF A
TRANSFER OF ANY NOTE, THE TRUSTEE, ANY AGENT AND THE COMPANY MAY DEEM AND
TREAT THE PERSON IN WHOSE NAME ANY NOTE IS REGISTERED AS THE ABSOLUTE
OWNER OF SUCH NOTE FOR THE PURPOSE OF RECEIVING PAYMENT OF PRINCIPAL OF
AND INTEREST ON SUCH NOTES AND FOR ALL OTHER PURPOSES, AND NONE OF THE
TRUSTEE, ANY AGENT OR THE COMPANY SHALL BE AFFECTED BY NOTICE TO THE
CONTRARY.
(VII) THE TRUSTEE SHALL AUTHENTICATE GLOBAL NOTES AND
DEFINITIVE NOTES IN
41
ACCORDANCE WITH THE PROVISIONS OF SECTION 2.02 HEREOF.
(VIII) ALL CERTIFICATIONS, CERTIFICATES AND OPINIONS OF COUNSEL
REQUIRED TO BE SUBMITTED TO THE REGISTRAR PURSUANT TO THIS SECTION 2.06 TO
EFFECT A REGISTRATION OF TRANSFER OR EXCHANGE MAY BE SUBMITTED BY
FACSIMILE.
SECTION 2.07. REPLACEMENT NOTES.
IF ANY MUTILATED NOTE IS SURRENDERED TO THE TRUSTEE OR THE COMPANY
AND THE TRUSTEE RECEIVES EVIDENCE TO ITS SATISFACTION OF THE DESTRUCTION, LOSS
OR THEFT OF ANY NOTE, THE COMPANY SHALL ISSUE AND THE TRUSTEE, UPON RECEIPT OF
AN AUTHENTICATION ORDER, SHALL AUTHENTICATE A REPLACEMENT NOTE IF THE TRUSTEE'S
REQUIREMENTS ARE MET. IF REQUIRED BY THE TRUSTEE OR THE COMPANY, AN INDEMNITY
BOND MUST BE SUPPLIED BY THE HOLDER THAT IS SUFFICIENT IN THE JUDGMENT OF THE
TRUSTEE AND THE COMPANY TO PROTECT THE COMPANY, THE TRUSTEE, ANY AGENT AND ANY
AUTHENTICATING AGENT FROM ANY LOSS THAT ANY OF THEM MAY SUFFER IF A NOTE IS
REPLACED. THE COMPANY MAY CHARGE FOR ITS EXPENSES IN REPLACING A NOTE.
EVERY REPLACEMENT NOTE IS AN ADDITIONAL OBLIGATION OF THE COMPANY AND
SHALL BE ENTITLED TO ALL OF THE BENEFITS OF THIS INDENTURE EQUALLY AND
PROPORTIONATELY WITH ALL OTHER NOTES DULY ISSUED HEREUNDER.
SECTION 2.08. OUTSTANDING NOTES.
THE NOTES OUTSTANDING AT ANY TIME ARE ALL THE NOTES AUTHENTICATED BY
THE TRUSTEE EXCEPT FOR THOSE CANCELED BY IT, THOSE DELIVERED TO IT FOR
CANCELLATION, THOSE REDUCTIONS IN THE INTEREST IN A GLOBAL NOTE EFFECTED BY THE
TRUSTEE IN ACCORDANCE WITH THE PROVISIONS HEREOF, AND THOSE DESCRIBED IN THIS
SECTION AS NOT OUTSTANDING. EXCEPT AS SET FORTH IN SECTION 2.09 HEREOF, A NOTE
DOES NOT CEASE TO BE OUTSTANDING BECAUSE THE COMPANY OR AN AFFILIATE OF THE
COMPANY HOLDS THE NOTE; HOWEVER, NOTES HELD BY THE COMPANY OR A SUBSIDIARY OF
THE COMPANY SHALL NOT BE DEEMED TO BE OUTSTANDING FOR PURPOSES OF SECTION
3.07(B) HEREOF.
IF A NOTE IS REPLACED PURSUANT TO SECTION 2.07 HEREOF, IT CEASES TO
BE OUTSTANDING UNLESS THE TRUSTEE RECEIVES PROOF SATISFACTORY TO IT THAT THE
REPLACED NOTE IS HELD BY A BONA FIDE PURCHASER.
IF THE PRINCIPAL AMOUNT OF ANY NOTE IS CONSIDERED PAID UNDER SECTION
4.01 HEREOF, IT CEASES TO BE OUTSTANDING AND INTEREST ON IT CEASES TO ACCRUE.
IF THE PAYING AGENT (OTHER THAN THE COMPANY, A SUBSIDIARY OR AN
AFFILIATE OF ANY THEREOF) HOLDS, ON A REDEMPTION DATE OR MATURITY DATE, MONEY
SUFFICIENT TO PAY NOTES PAYABLE ON THAT DATE, THEN ON AND AFTER THAT DATE SUCH
NOTES SHALL BE DEEMED TO BE NO LONGER OUTSTANDING AND SHALL CEASE TO ACCRUE
INTEREST.
SECTION 2.09. TREASURY NOTES.
IN DETERMINING WHETHER THE HOLDERS OF THE REQUIRED PRINCIPAL AMOUNT
OF NOTES HAVE CONCURRED IN ANY DIRECTION, WAIVER OR CONSENT, NOTES OWNED BY THE
COMPANY, OR BY ANY PERSON DIRECTLY OR INDIRECTLY CONTROLLING OR CONTROLLED BY OR
UNDER DIRECT OR INDIRECT COMMON CONTROL WITH THE COMPANY, SHALL BE CONSIDERED AS
THOUGH NOT OUTSTANDING, EXCEPT THAT FOR THE PURPOSES OF DETERMINING WHETHER THE
TRUSTEE SHALL BE
42
PROTECTED IN RELYING ON ANY SUCH DIRECTION, WAIVER OR CONSENT,
ONLY NOTES THAT THE TRUSTEE KNOWS ARE SO OWNED SHALL BE SO DISREGARDED.
SECTION 2.10. TEMPORARY NOTES.
UNTIL CERTIFICATES REPRESENTING NOTES ARE READY FOR DELIVERY, THE
COMPANY MAY PREPARE AND THE TRUSTEE, UPON RECEIPT OF AN AUTHENTICATION ORDER,
SHALL AUTHENTICATE TEMPORARY NOTES. TEMPORARY NOTES SHALL BE SUBSTANTIALLY IN
THE FORM OF CERTIFICATED NOTES BUT MAY HAVE VARIATIONS THAT THE COMPANY
CONSIDERS APPROPRIATE FOR TEMPORARY NOTES AND AS SHALL BE REASONABLY ACCEPTABLE
TO THE TRUSTEE. WITHOUT UNREASONABLE DELAY, THE COMPANY SHALL PREPARE AND THE
TRUSTEE SHALL AUTHENTICATE DEFINITIVE NOTES IN EXCHANGE FOR TEMPORARY NOTES.
HOLDERS OF TEMPORARY NOTES SHALL BE ENTITLED TO ALL OF THE BENEFITS
OF THIS INDENTURE.
SECTION 2.11. CANCELLATION.
THE COMPANY AT ANY TIME MAY DELIVER NOTES TO THE TRUSTEE FOR
CANCELLATION. THE REGISTRAR AND PAYING AGENT SHALL FORWARD TO THE TRUSTEE ANY
NOTES SURRENDERED TO THEM FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT. THE
TRUSTEE AND NO ONE ELSE SHALL CANCEL ALL NOTES SURRENDERED FOR REGISTRATION OF
TRANSFER, EXCHANGE, PAYMENT, REPLACEMENT OR CANCELLATION AND SHALL DESTROY
CANCELED NOTES (SUBJECT TO THE RECORD RETENTION REQUIREMENT OF THE EXCHANGE
ACT). CERTIFICATION OF THE DESTRUCTION OF ALL CANCELED NOTES SHALL BE DELIVERED
TO THE COMPANY. THE COMPANY MAY NOT ISSUE NEW NOTES TO REPLACE NOTES THAT IT HAS
PAID OR THAT HAVE BEEN DELIVERED TO THE TRUSTEE FOR CANCELLATION.
SECTION 2.12. DEFAULTED INTEREST.
IF THE COMPANY DEFAULTS IN A PAYMENT OF INTEREST ON THE NOTES, IT
SHALL PAY THE DEFAULTED INTEREST IN ANY LAWFUL MANNER PLUS, TO THE EXTENT
LAWFUL, INTEREST PAYABLE ON THE DEFAULTED INTEREST, TO THE PERSONS WHO ARE
HOLDERS ON A SUBSEQUENT SPECIAL RECORD DATE, IN EACH CASE AT THE RATE PROVIDED
IN THE NOTES AND IN SECTION 4.01 HEREOF. THE COMPANY SHALL NOTIFY THE TRUSTEE IN
WRITING OF THE AMOUNT OF DEFAULTED INTEREST PROPOSED TO BE PAID ON EACH NOTE AND
THE DATE OF THE PROPOSED PAYMENT. THE COMPANY SHALL FIX OR CAUSE TO BE FIXED
EACH SUCH SPECIAL RECORD DATE AND PAYMENT DATE, PROVIDED THAT NO SUCH SPECIAL
RECORD DATE SHALL BE LESS THAN 10 DAYS PRIOR TO THE RELATED PAYMENT DATE FOR
SUCH DEFAULTED INTEREST. AT LEAST 15 DAYS BEFORE THE SPECIAL RECORD DATE, THE
COMPANY (OR, UPON THE WRITTEN REQUEST OF THE COMPANY, THE TRUSTEE IN THE NAME
AND AT THE EXPENSE OF THE COMPANY) SHALL MAIL OR CAUSE TO BE MAILED TO HOLDERS A
NOTICE THAT STATES THE SPECIAL RECORD DATE, THE RELATED PAYMENT DATE AND THE
AMOUNT OF SUCH INTEREST TO BE PAID.
SECTION 2.13. 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 AND THE TRUSTEE MAY USE CUSIP NUMBERS IN NOTICES OF
REDEMPTION AS A CONVENIENCE TO HOLDERS. NO REPRESENTATION IS MADE AS TO THE
ACCURACY OF SUCH NUMBERS EITHER AS PRINTED ON THE NOTES OR AS CONTAINED IN ANY
NOTICE OF REDEMPTION AND RELIANCE MAY BE PLACED ONLY ON THE OTHER IDENTIFICATION
NUMBERS PLACED THEREON.
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ARTICLE 3 REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
IF THE COMPANY ELECTS TO REDEEM NOTES PURSUANT TO THE OPTIONAL
REDEMPTION PROVISIONS OF SECTION 3.07 HEREOF, IT SHALL FURNISH TO THE TRUSTEE,
AT LEAST 30 DAYS BUT NOT MORE THAN 60 DAYS BEFORE A REDEMPTION DATE, AN
OFFICERS' CERTIFICATE SETTING FORTH (I) THE CLAUSE OF THIS INDENTURE PURSUANT TO
WHICH THE REDEMPTION SHALL OCCUR, (II) THE REDEMPTION DATE, (III) THE PRINCIPAL
AMOUNT OF NOTES TO BE REDEEMED AND (IV) THE REDEMPTION PRICE.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
IF LESS THAN ALL OF THE NOTES ARE TO BE REDEEMED OR PURCHASED IN AN
OFFER TO PURCHASE AT ANY TIME, THE TRUSTEE SHALL SELECT THE NOTES TO BE REDEEMED
OR PURCHASED AMONG THE HOLDERS OF THE NOTES IN COMPLIANCE WITH THE REQUIREMENTS
OF THE PRINCIPAL NATIONAL SECURITIES EXCHANGE, IF ANY, ON WHICH THE NOTES ARE
LISTED OR, IF THE NOTES ARE NOT SO LISTED, ON A PRO RATA BASIS, BY LOT OR IN
ACCORDANCE WITH ANY OTHER METHOD THE TRUSTEE CONSIDERS FAIR AND APPROPRIATE. IN
THE EVENT OF PARTIAL REDEMPTION BY LOT, THE PARTICULAR NOTES TO BE REDEEMED
SHALL BE SELECTED, UNLESS OTHERWISE PROVIDED HEREIN, NOT LESS THAN 30 NOR MORE
THAN 60 DAYS PRIOR TO THE REDEMPTION DATE BY THE TRUSTEE FROM THE OUTSTANDING
NOTES NOT PREVIOUSLY CALLED FOR REDEMPTION.
THE TRUSTEE SHALL PROMPTLY NOTIFY THE COMPANY IN WRITING OF THE NOTES
SELECTED FOR REDEMPTION AND, IN THE CASE OF ANY NOTE SELECTED FOR PARTIAL
REDEMPTION, THE PRINCIPAL AMOUNT THEREOF TO BE REDEEMED. NOTES AND PORTIONS OF
NOTES SELECTED SHALL BE IN AMOUNTS OF $1,000 OR WHOLE MULTIPLES OF $1,000;
EXCEPT THAT IF ALL OF THE NOTES OF A HOLDER ARE TO BE REDEEMED, THE ENTIRE
OUTSTANDING AMOUNT OF NOTES HELD BY SUCH HOLDER, EVEN IF NOT A MULTIPLE OF
$1,000, SHALL BE REDEEMED. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE,
PROVISIONS OF THIS INDENTURE THAT APPLY TO NOTES CALLED FOR REDEMPTION ALSO
APPLY TO PORTIONS OF NOTES CALLED FOR REDEMPTION.
SECTION 3.03. NOTICE OF REDEMPTION.
SUBJECT TO THE PROVISIONS OF SECTION 3.09 HEREOF, AT LEAST 30 DAYS
BUT NOT MORE THAN 60 DAYS BEFORE A REDEMPTION DATE, THE COMPANY SHALL MAIL OR
CAUSE TO BE MAILED, BY FIRST CLASS MAIL, A NOTICE OF REDEMPTION TO EACH HOLDER
WHOSE NOTES ARE TO BE REDEEMED AT ITS REGISTERED ADDRESS.
THE NOTICE SHALL IDENTIFY THE NOTES TO BE REDEEMED AND SHALL STATE:
(A) THE REDEMPTION DATE;
(B) THE REDEMPTION PRICE;
(C) 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
UPON SURRENDER OF SUCH NOTE, A NEW NOTE OR NOTES IN PRINCIPAL AMOUNT EQUAL TO
THE UNREDEEMED PORTION SHALL BE
44
ISSUED UPON CANCELLATION OF THE ORIGINAL NOTE;
(D) THE NAME AND ADDRESS OF THE PAYING AGENT;
(E) THAT NOTES CALLED FOR REDEMPTION MUST BE SURRENDERED TO THE
PAYING AGENT TO COLLECT THE REDEMPTION PRICE;
(F) THAT, UNLESS THE COMPANY DEFAULTS IN MAKING SUCH REDEMPTION
PAYMENT, INTEREST ON NOTES CALLED FOR REDEMPTION CEASES TO ACCRUE ON AND AFTER
THE REDEMPTION DATE;
(G) THE PARAGRAPH OF THE NOTES AND/OR SECTION OF THIS INDENTURE
PURSUANT TO WHICH THE NOTES CALLED FOR REDEMPTION ARE BEING REDEEMED; AND
(H) THAT NO REPRESENTATION IS MADE AS TO THE CORRECTNESS OR ACCURACY
OF THE CUSIP NUMBER, IF ANY, LISTED IN SUCH NOTICE OR PRINTED ON THE NOTES.
AT THE COMPANY'S REQUEST, THE TRUSTEE SHALL GIVE THE NOTICE OF
REDEMPTION IN THE COMPANY'S NAME AND AT ITS EXPENSE; PROVIDED, HOWEVER, THAT THE
COMPANY SHALL HAVE DELIVERED TO THE TRUSTEE, AT LEAST 45 DAYS PRIOR TO THE
REDEMPTION DATE, AN OFFICERS' CERTIFICATE REQUESTING THAT THE TRUSTEE GIVE SUCH
NOTICE AND SETTING FORTH THE INFORMATION TO BE STATED IN SUCH NOTICE AS PROVIDED
IN THE PRECEDING PARAGRAPH.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
ONCE NOTICE OF REDEMPTION IS MAILED IN ACCORDANCE WITH SECTION 3.03
HEREOF, NOTES CALLED FOR REDEMPTION BECOME IRREVOCABLY DUE AND PAYABLE ON THE
REDEMPTION DATE AT THE REDEMPTION PRICE. A NOTICE OF REDEMPTION MAY NOT BE
CONDITIONAL.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
ONE BUSINESS DAY PRIOR TO THE REDEMPTION DATE, THE COMPANY SHALL
DEPOSIT WITH THE TRUSTEE OR WITH THE PAYING AGENT MONEY SUFFICIENT TO PAY THE
REDEMPTION PRICE OF AND ACCRUED INTEREST ON ALL NOTES TO BE REDEEMED ON THAT
DATE. THE TRUSTEE OR THE PAYING AGENT SHALL PROMPTLY RETURN TO THE COMPANY ANY
MONEY DEPOSITED WITH THE TRUSTEE OR THE PAYING AGENT BY THE COMPANY IN EXCESS OF
THE AMOUNTS NECESSARY TO PAY THE REDEMPTION PRICE OF, AND ACCRUED INTEREST ON,
ALL NOTES TO BE REDEEMED.
IF THE COMPANY COMPLIES WITH THE PROVISIONS OF THE PRECEDING
PARAGRAPH, ON AND AFTER THE REDEMPTION DATE, INTEREST SHALL CEASE TO ACCRUE ON
THE NOTES OR THE PORTIONS OF NOTES CALLED FOR REDEMPTION. IF A NOTE IS REDEEMED
ON OR AFTER AN INTEREST RECORD DATE BUT ON OR PRIOR TO THE RELATED INTEREST
PAYMENT DATE, THEN ANY ACCRUED AND UNPAID INTEREST SHALL BE PAID TO THE PERSON
IN WHOSE NAME SUCH NOTE WAS REGISTERED AT THE CLOSE OF BUSINESS ON SUCH RECORD
DATE. IF ANY NOTE CALLED FOR REDEMPTION SHALL NOT BE SO PAID UPON SURRENDER FOR
REDEMPTION BECAUSE OF THE FAILURE OF THE COMPANY TO COMPLY WITH THE PRECEDING
PARAGRAPH, INTEREST SHALL BE PAID ON THE UNPAID PRINCIPAL, FROM THE REDEMPTION
DATE UNTIL SUCH PRINCIPAL IS PAID, AND TO THE EXTENT LAWFUL ON ANY INTEREST NOT
PAID ON SUCH UNPAID PRINCIPAL, IN EACH CASE AT THE RATE PROVIDED IN THE NOTES
AND IN SECTION 4.01 HEREOF.
SECTION 3.06. NOTES REDEEMED IN PART.
45
UPON SURRENDER OF A NOTE THAT IS REDEEMED IN PART, THE COMPANY SHALL
ISSUE AND, UPON THE COMPANY'S WRITTEN REQUEST, THE TRUSTEE SHALL AUTHENTICATE
FOR THE HOLDER AT THE EXPENSE OF THE COMPANY A NEW NOTE EQUAL IN PRINCIPAL
AMOUNT TO THE UNREDEEMED PORTION OF THE NOTE SURRENDERED.
SECTION 3.07. OPTIONAL REDEMPTION.
(A) EXCEPT AS SET FORTH IN CLAUSE (B) OF THIS SECTION 3.07, THE
COMPANY SHALL NOT HAVE THE OPTION TO REDEEM THE NOTES PURSUANT TO THIS SECTION
3.07 PRIOR TO JUNE 1, 2004. THEREAFTER, THE COMPANY SHALL HAVE THE OPTION TO
REDEEM THE NOTES UPON NOT LESS THAN 30 NOR MORE THAN 60 DAYS' NOTICE, IN WHOLE
OR IN PART, AT THE REDEMPTION PRICES (EXPRESSED AS PERCENTAGES OF PRINCIPAL
AMOUNT) SET FORTH BELOW PLUS ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES,
IF ANY, THEREON, TO THE APPLICABLE REDEMPTION DATE, IF REDEEMED DURING THE
TWELVE-MONTH PERIOD BEGINNING ON JUNE 1 OF THE YEARS INDICATED BELOW:
YEAR PERCENTAGE
---- ----------
2004......................................................105.7500%
2005......................................................103.8333%
2006......................................................101.9167%
2007 AND THEREAFTER.......................................100.0000%
(B) NOTWITHSTANDING THE PROVISIONS OF CLAUSE (A) OF THIS SECTION
3.07, AT ANY TIME PRIOR TO JUNE 1, 2002, THE COMPANY MAY REDEEM UP TO 35% OF THE
AGGREGATE PRINCIPAL AMOUNT OF NOTES ORIGINALLY ISSUED UNDER THE INDENTURE AT A
REDEMPTION PRICE OF 111.50% OF THE AGGREGATE PRINCIPAL AMOUNT THEREOF, PLUS
ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES, IF ANY, TO THE REDEMPTION
DATE, WITH THE NET CASH PROCEEDS OF ONE OR MORE EQUITY OFFERINGS; PROVIDED THAT
AT LEAST 65% OF THE AGGREGATE PRINCIPAL AMOUNT OF NOTES REMAINS OUTSTANDING
IMMEDIATELY AFTER THE OCCURRENCE OF SUCH REDEMPTION (EXCLUDING NOTES HELD BY THE
COMPANY AND ITS SUBSIDIARIES) AND THE REDEMPTION OCCURS WITHIN 90 DAYS OF THE
DATE OF THE CLOSING OF SUCH EQUITY OFFERING.
(C) ANY REDEMPTION PURSUANT TO THIS SECTION 3.07 SHALL BE MADE
PURSUANT TO THE PROVISIONS OF SECTION 3.01 THROUGH 3.06 HEREOF.
SECTION 3.08. MANDATORY REDEMPTION.
THE COMPANY SHALL NOT BE REQUIRED TO MAKE MANDATORY REDEMPTION OR
SINKING FUND PAYMENTS WITH RESPECT TO THE NOTES.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
IN THE EVENT THAT, PURSUANT TO SECTION 4.10 HEREOF, THE COMPANY SHALL
BE REQUIRED TO COMMENCE AN OFFER TO ALL HOLDERS TO PURCHASE NOTES (AN "ASSET
SALE OFFER"), IT SHALL FOLLOW THE PROCEDURES SPECIFIED BELOW.
THE ASSET SALE OFFER SHALL REMAIN OPEN FOR A PERIOD OF 20 BUSINESS
DAYS FOLLOWING ITS COMMENCEMENT AND NO LONGER, EXCEPT TO THE EXTENT THAT A
LONGER PERIOD IS REQUIRED BY APPLICABLE LAW (THE "OFFER PERIOD"). NO LATER THAN
FIVE BUSINESS DAYS AFTER THE TERMINATION OF THE OFFER PERIOD (THE "PURCHASE
DATE"), THE COMPANY SHALL PURCHASE THE PRINCIPAL AMOUNT OF NOTES REQUIRED TO BE
PURCHASED PURSUANT TO SECTION 4.10 HEREOF (THE "OFFER AMOUNT") OR, IF LESS THAN
THE OFFER AMOUNT HAS BEEN TENDERED, ALL NOTES TENDERED
46
IN RESPONSE TO THE ASSET SALE OFFER. PAYMENT FOR ANY NOTES SO PURCHASED SHALL BE
MADE IN THE SAME MANNER AS INTEREST PAYMENTS ARE MADE.
IF THE PURCHASE DATE IS ON OR AFTER AN INTEREST RECORD DATE AND ON OR
BEFORE THE RELATED INTEREST PAYMENT DATE, ANY ACCRUED AND UNPAID INTEREST SHALL
BE PAID TO THE PERSON IN WHOSE NAME A NOTE IS REGISTERED AT THE CLOSE OF
BUSINESS ON SUCH RECORD DATE, AND NO ADDITIONAL INTEREST SHALL BE PAYABLE TO
HOLDERS WHO TENDER NOTES PURSUANT TO THE ASSET SALE OFFER.
UPON THE COMMENCEMENT OF AN ASSET SALE OFFER, THE COMPANY SHALL SEND,
BY FIRST CLASS MAIL, A NOTICE TO THE TRUSTEE AND EACH OF THE HOLDERS, WITH A
COPY TO THE TRUSTEE. THE NOTICE SHALL CONTAIN ALL INSTRUCTIONS AND MATERIALS
NECESSARY TO ENABLE SUCH HOLDERS TO TENDER NOTES PURSUANT TO THE ASSET SALE
OFFER. THE ASSET SALE OFFER SHALL BE MADE TO ALL HOLDERS. THE NOTICE, WHICH
SHALL GOVERN THE TERMS OF THE ASSET SALE OFFER, SHALL STATE:
(A) THAT THE ASSET SALE OFFER IS BEING MADE PURSUANT TO THIS SECTION
3.09 AND SECTION 4.10 HEREOF AND THE LENGTH OF TIME THE ASSET SALE OFFER SHALL
REMAIN OPEN;
(B) THE OFFER AMOUNT, THE PURCHASE PRICE AND THE PURCHASE DATE;
(C) THAT ANY NOTE NOT TENDERED OR ACCEPTED FOR PAYMENT SHALL CONTINUE
TO ACCRETE OR ACCRUE INTEREST;
(D) THAT, UNLESS THE COMPANY DEFAULTS IN MAKING SUCH PAYMENT, ANY
NOTE OR PORTION THEREOF ACCEPTED FOR PAYMENT PURSUANT TO THE ASSET SALE OFFER
SHALL CEASE TO ACCRETE OR ACCRUE INTEREST AFTER THE PURCHASE DATE;
(E) THAT HOLDERS ELECTING TO HAVE A NOTE PURCHASED PURSUANT TO AN
ASSET SALE OFFER MAY ELECT TO HAVE NOTES PURCHASED IN INTEGRAL MULTIPLES OF
$1,000 ONLY;
(F) THAT HOLDERS ELECTING TO HAVE A NOTE PURCHASED PURSUANT TO ANY
ASSET SALE OFFER SHALL BE REQUIRED TO SURRENDER THE NOTE, WITH THE FORM ENTITLED
"OPTION OF HOLDER TO ELECT PURCHASE" ON THE REVERSE OF THE NOTE COMPLETED, OR
TRANSFER BY BOOK-ENTRY TRANSFER, TO THE COMPANY, A DEPOSITARY, IF APPOINTED BY
THE COMPANY, OR A PAYING AGENT AT THE ADDRESS SPECIFIED IN THE NOTICE AT LEAST
THREE DAYS BEFORE THE PURCHASE DATE;
(G) THAT HOLDERS SHALL BE ENTITLED TO WITHDRAW THEIR ELECTION IF THE
COMPANY, THE DEPOSITARY OR THE PAYING AGENT, AS THE CASE MAY BE, RECEIVES, NOT
LATER THAN THE EXPIRATION OF THE OFFER PERIOD, A TELEGRAM, TELEX, FACSIMILE
TRANSMISSION OR LETTER SETTING FORTH THE NAME OF THE HOLDER, THE PRINCIPAL
AMOUNT OF THE NOTE THE HOLDER DELIVERED FOR PURCHASE AND A STATEMENT THAT SUCH
HOLDER IS WITHDRAWING HIS ELECTION TO HAVE SUCH NOTE PURCHASED;
(H) THAT, IF THE AGGREGATE PRINCIPAL AMOUNT OF NOTES SURRENDERED BY
HOLDERS EXCEEDS THE OFFER AMOUNT, THE COMPANY SHALL SELECT THE NOTES TO BE
PURCHASED ON A PRO RATA BASIS (WITH SUCH ADJUSTMENTS AS MAY BE DEEMED
APPROPRIATE BY THE COMPANY SO THAT ONLY NOTES IN DENOMINATIONS OF $1,000, OR
INTEGRAL MULTIPLES THEREOF, SHALL BE PURCHASED); AND
(I) THAT HOLDERS WHOSE NOTES WERE PURCHASED ONLY IN PART SHALL BE
ISSUED NEW
47
NOTES EQUAL IN PRINCIPAL AMOUNT TO THE UNPURCHASED PORTION OF THE NOTES
SURRENDERED (OR TRANSFERRED BY BOOK-ENTRY TRANSFER).
ON OR BEFORE THE PURCHASE DATE, THE COMPANY SHALL, TO THE EXTENT
LAWFUL, ACCEPT FOR PAYMENT, ON A PRO RATA BASIS TO THE EXTENT NECESSARY, THE
OFFER AMOUNT OF NOTES OR PORTIONS THEREOF TENDERED PURSUANT TO THE ASSET SALE
OFFER, OR IF LESS THAN THE OFFER AMOUNT HAS BEEN TENDERED, ALL NOTES TENDERED,
AND SHALL DELIVER TO THE TRUSTEE AN OFFICERS' CERTIFICATE STATING THAT SUCH
NOTES OR PORTIONS THEREOF WERE ACCEPTED FOR PAYMENT BY THE COMPANY IN ACCORDANCE
WITH THE TERMS OF THIS SECTION 3.09. THE COMPANY, THE DEPOSITARY OR THE PAYING
AGENT, AS THE CASE MAY BE, SHALL PROMPTLY (BUT IN ANY CASE NOT LATER THAN FIVE
DAYS AFTER THE PURCHASE DATE) MAIL OR DELIVER TO EACH TENDERING HOLDER AN AMOUNT
EQUAL TO THE PURCHASE PRICE OF THE NOTES TENDERED BY SUCH HOLDER AND ACCEPTED BY
THE COMPANY FOR PURCHASE, AND THE COMPANY SHALL PROMPTLY ISSUE A NEW NOTE, AND
THE TRUSTEE, UPON WRITTEN REQUEST FROM THE COMPANY SHALL AUTHENTICATE AND MAIL
OR DELIVER SUCH NEW NOTE TO SUCH HOLDER, IN A PRINCIPAL AMOUNT EQUAL TO ANY
UNPURCHASED PORTION OF THE NOTE SURRENDERED. ANY NOTE NOT SO ACCEPTED SHALL BE
PROMPTLY MAILED OR DELIVERED BY THE COMPANY TO THE HOLDER THEREOF. THE COMPANY
SHALL PUBLICLY ANNOUNCE THE RESULTS OF THE ASSET SALE OFFER ON THE PURCHASE
DATE.
OTHER THAN AS SPECIFICALLY PROVIDED IN THIS SECTION 3.09, ANY
PURCHASE PURSUANT TO THIS SECTION 3.09 SHALL BE MADE PURSUANT TO THE PROVISIONS
OF SECTIONS 3.01 THROUGH 3.06 HEREOF.
ARTICLE 4 COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
THE COMPANY SHALL PAY OR CAUSE TO BE PAID THE PRINCIPAL OF, PREMIUM,
IF ANY, AND INTEREST ON THE NOTES ON THE DATES AND IN THE MANNER PROVIDED IN THE
NOTES. PRINCIPAL, PREMIUM, IF ANY, AND INTEREST SHALL BE CONSIDERED PAID ON THE
DATE DUE IF THE PAYING AGENT, IF OTHER THAN THE COMPANY OR A SUBSIDIARY THEREOF,
HOLDS AS OF 10:00 A.M. EASTERN TIME ON THE DUE DATE MONEY DEPOSITED BY THE
COMPANY IN IMMEDIATELY AVAILABLE FUNDS AND DESIGNATED FOR AND SUFFICIENT TO PAY
ALL PRINCIPAL, PREMIUM, IF ANY, AND INTEREST THEN DUE. THE COMPANY SHALL PAY ALL
LIQUIDATED DAMAGES, IF ANY, IN THE SAME MANNER ON THE DATES AND IN THE AMOUNTS
SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT.
THE COMPANY SHALL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN
ANY PROCEEDING UNDER ANY BANKRUPTCY LAW) ON OVERDUE PRINCIPAL AT THE RATE EQUAL
TO 1% PER ANNUM IN EXCESS OF THE THEN APPLICABLE INTEREST RATE ON THE NOTES TO
THE EXTENT LAWFUL; IT SHALL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN
ANY PROCEEDING UNDER ANY BANKRUPTCY LAW) ON OVERDUE INSTALLMENTS OF INTEREST,
AND LIQUIDATED DAMAGES (WITHOUT REGARD TO ANY APPLICABLE GRACE PERIOD) AT THE
SAME RATE TO THE EXTENT LAWFUL.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
THE COMPANY SHALL MAINTAIN IN THE BOROUGH OF MANHATTAN, THE CITY OF
NEW YORK, AN OFFICE OR AGENCY (WHICH MAY BE AN OFFICE OF THE TRUSTEE OR AN AGENT
OF THE TRUSTEE, REGISTRAR OR CO-REGISTRAR) WHERE NOTES MAY BE SURRENDERED FOR
REGISTRATION OF TRANSFER OR FOR EXCHANGE AND WHERE NOTICES AND DEMANDS TO OR
UPON THE COMPANY IN RESPECT OF THE
48
NOTES AND THIS INDENTURE MAY BE SERVED. THE COMPANY SHALL GIVE PROMPT WRITTEN
NOTICE TO THE TRUSTEE OF THE LOCATION, AND ANY CHANGE IN THE LOCATION, OF SUCH
OFFICE OR AGENCY. IF AT ANY TIME THE COMPANY SHALL FAIL TO MAINTAIN ANY SUCH
REQUIRED OFFICE OR AGENCY OR SHALL FAIL TO FURNISH THE TRUSTEE WITH THE ADDRESS
THEREOF, SUCH PRESENTATIONS, SURRENDERS, NOTICES AND DEMANDS MAY BE MADE OR
SERVED AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE.
THE COMPANY MAY ALSO FROM TIME TO TIME DESIGNATE ONE OR MORE OTHER
OFFICES OR AGENCIES WHERE THE NOTES MAY BE PRESENTED OR SURRENDERED FOR ANY OR
ALL SUCH PURPOSES AND MAY FROM TIME TO TIME RESCIND SUCH DESIGNATIONS; PROVIDED,
HOWEVER, THAT NO SUCH DESIGNATION OR RESCISSION SHALL IN ANY MANNER RELIEVE THE
COMPANY OF ITS OBLIGATION TO MAINTAIN AN OFFICE OR AGENCY IN THE BOROUGH OF
MANHATTAN, THE CITY OF NEW YORK FOR SUCH PURPOSES. THE COMPANY SHALL GIVE PROMPT
WRITTEN NOTICE TO THE TRUSTEE OF ANY SUCH DESIGNATION OR RESCISSION AND OF ANY
CHANGE IN THE LOCATION OF ANY SUCH OTHER OFFICE OR AGENCY.
THE COMPANY HEREBY DESIGNATES THE CORPORATE TRUST OFFICE OF THE
TRUSTEE AS ONE SUCH OFFICE OR AGENCY OF THE COMPANY IN ACCORDANCE WITH SECTION
2.03.
SECTION 4.03. REPORTS.
(A) WHETHER OR NOT REQUIRED BY THE RULES AND REGULATIONS OF THE SEC,
SO LONG AS ANY NOTES ARE OUTSTANDING, THE COMPANY SHALL FURNISH TO THE HOLDERS
OF NOTES, ON OR BEFORE THE FIFTH DAY FOLLOWING THE DATE ON WHICH SUCH REPORTS
ARE OR WOULD BE DUE UNDER THE SEC'S RULES AND REGULATIONS (I) ALL QUARTERLY AND
ANNUAL FINANCIAL INFORMATION THAT WOULD BE REQUIRED TO BE CONTAINED IN A FILING
WITH THE SEC ON FORMS 10-Q AND 10-K IF THE COMPANY WERE REQUIRED TO FILE SUCH
FORMS, INCLUDING A "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS" AND, WITH RESPECT TO THE ANNUAL INFORMATION ONLY, A
REPORT THEREON BY THE COMPANY'S CERTIFIED INDEPENDENT ACCOUNTANTS AND (II) ALL
CURRENT REPORTS THAT WOULD BE REQUIRED TO BE FILED WITH THE SEC ON FORM 8-K IF
THE COMPANY WERE REQUIRED TO FILE SUCH REPORTS. THE QUARTERLY AND ANNUAL
FINANCIAL INFORMATION REQUIRED BY THIS PARAGRAPH SHALL SEPARATELY INCLUDE A
REASONABLY DETAILED PRESENTATION, EITHER ON THE FACE OF THE FINANCIAL STATEMENTS
OR IN THE FOOTNOTES THERETO, OF THE FINANCIAL CONDITION AND RESULTS OF
OPERATIONS OF THE NON-GUARANTOR SUBSIDIARIES OF THE COMPANY. IN ADDITION,
FOLLOWING CONSUMMATION OF THE EXCHANGE OFFER CONTEMPLATED BY THE REGISTRATION
RIGHTS AGREEMENT, WHETHER OR NOT REQUIRED BY THE RULES AND REGULATIONS OF THE
SEC, THE COMPANY SHALL FILE A COPY OF ALL SUCH INFORMATION AND REPORTS REFERRED
TO IN CLAUSES (I) AND (II) OF THIS PARAGRAPH WITH THE SEC FOR PUBLIC
AVAILABILITY WITHIN THE TIME PERIODS SPECIFIED IN THE SEC'S RULES AND
REGULATIONS (UNLESS THE SEC WILL NOT ACCEPT SUCH A FILING) AND MAKE SUCH
INFORMATION AVAILABLE TO SECURITIES ANALYSTS AND PROSPECTIVE INVESTORS UPON
REQUEST. THE COMPANY SHALL AT ALL TIMES COMPLY WITH TIA SS. 314(A).
(B) FOR SO LONG AS ANY NOTES REMAIN OUTSTANDING, THE COMPANY SHALL
FURNISH TO THE HOLDERS AND TO SECURITIES ANALYSTS AND PROSPECTIVE INVESTORS,
UPON THEIR REQUEST, THE INFORMATION REQUIRED TO BE DELIVERED PURSUANT TO RULE
144A(D)(4) UNDER THE SECURITIES ACT.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(A) THE COMPANY AND EACH SUBSIDIARY GUARANTOR (TO THE EXTENT SUCH
SUBSIDIARY
49
GUARANTOR IS SO REQUIRED UNDER THE TIA) SHALL DELIVER TO THE TRUSTEE, WITHIN 90
DAYS AFTER THE END OF EACH FISCAL YEAR, AN OFFICERS' CERTIFICATE STATING THAT A
REVIEW OF THE ACTIVITIES OF THE COMPANY AND ITS SUBSIDIARIES DURING THE
PRECEDING FISCAL YEAR HAS BEEN MADE UNDER THE SUPERVISION OF THE SIGNING
OFFICERS WITH A VIEW TO DETERMINING WHETHER THE COMPANY HAS KEPT, OBSERVED,
PERFORMED AND FULFILLED ITS OBLIGATIONS UNDER THIS INDENTURE, AND FURTHER
STATING, AS TO EACH SUCH OFFICER SIGNING SUCH CERTIFICATE, THAT TO THE BEST OF
HIS OR HER KNOWLEDGE THE COMPANY HAS KEPT, OBSERVED, PERFORMED AND FULFILLED
EACH AND EVERY COVENANT CONTAINED IN THIS INDENTURE AND IS NOT IN DEFAULT IN THE
PERFORMANCE OR OBSERVANCE OF ANY OF THE TERMS, PROVISIONS AND CONDITIONS OF THIS
INDENTURE (OR, IF A DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED, DESCRIBING
ALL SUCH DEFAULTS OR EVENTS OF DEFAULT OF WHICH HE OR SHE MAY HAVE KNOWLEDGE AND
WHAT ACTION THE COMPANY IS TAKING OR PROPOSES TO TAKE WITH RESPECT THERETO) AND
THAT TO THE BEST OF HIS OR HER KNOWLEDGE NO EVENT HAS OCCURRED AND REMAINS IN
EXISTENCE BY REASON OF WHICH PAYMENTS ON ACCOUNT OF THE PRINCIPAL OF OR
INTEREST, IF ANY, ON THE NOTES IS PROHIBITED OR IF SUCH EVENT HAS OCCURRED, A
DESCRIPTION OF THE EVENT AND WHAT ACTION THE COMPANY IS TAKING OR PROPOSES TO
TAKE WITH RESPECT THERETO.
(B) SO LONG AS NOT CONTRARY TO THE THEN CURRENT RECOMMENDATIONS OF
THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS, THE YEAR-END FINANCIAL
STATEMENTS DELIVERED PURSUANT TO SECTION 4.03(A) ABOVE SHALL BE ACCOMPANIED BY A
WRITTEN STATEMENT OF THE COMPANY'S INDEPENDENT PUBLIC ACCOUNTANTS (WHO SHALL BE
A FIRM OF ESTABLISHED NATIONAL REPUTATION) THAT IN MAKING THE EXAMINATION
NECESSARY FOR CERTIFICATION OF SUCH FINANCIAL STATEMENTS, NOTHING HAS COME TO
THEIR ATTENTION THAT WOULD LEAD THEM TO BELIEVE THAT THE COMPANY HAS VIOLATED
ANY PROVISIONS OF ARTICLE 4 OR ARTICLE 5 HEREOF OR, IF ANY SUCH VIOLATION HAS
OCCURRED, SPECIFYING THE NATURE AND PERIOD OF EXISTENCE THEREOF, IT BEING
UNDERSTOOD THAT SUCH ACCOUNTANTS SHALL NOT BE LIABLE DIRECTLY OR INDIRECTLY TO
ANY PERSON FOR ANY FAILURE TO OBTAIN KNOWLEDGE OF ANY SUCH VIOLATION.
(C) THE COMPANY SHALL, SO LONG AS ANY OF THE NOTES ARE OUTSTANDING,
DELIVER TO THE TRUSTEE, FORTHWITH UPON ANY OFFICER BECOMING AWARE OF ANY DEFAULT
OR EVENT OF DEFAULT, AN OFFICERS' CERTIFICATE SPECIFYING SUCH DEFAULT OR EVENT
OF DEFAULT AND WHAT ACTION THE COMPANY IS TAKING OR PROPOSES TO TAKE WITH
RESPECT THERETO.
SECTION 4.05. TAXES.
THE COMPANY SHALL PAY, AND SHALL CAUSE EACH OF ITS SUBSIDIARIES TO
PAY, PRIOR TO DELINQUENCY, ALL MATERIAL TAXES, ASSESSMENTS, AND GOVERNMENTAL
LEVIES EXCEPT SUCH AS ARE CONTESTED IN GOOD FAITH AND BY APPROPRIATE PROCEEDINGS
OR WHERE THE FAILURE TO EFFECT SUCH PAYMENT IS NOT ADVERSE IN ANY MATERIAL
RESPECT TO THE HOLDERS OF THE NOTES.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
THE COMPANY AND EACH OF THE SUBSIDIARY GUARANTORS COVENANTS (TO THE
EXTENT THAT IT MAY LAWFULLY DO SO) THAT IT SHALL NOT AT ANY TIME INSIST UPON,
PLEAD, OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE BENEFIT OR ADVANTAGE OF,
ANY STAY, EXTENSION OR USURY LAW WHEREVER ENACTED, NOW OR AT ANY TIME HEREAFTER
IN FORCE, THAT MAY AFFECT THE COVENANTS OR THE PERFORMANCE OF THIS INDENTURE;
AND THE COMPANY AND EACH OF THE SUBSIDIARY GUARANTORS (TO THE EXTENT THAT IT MAY
LAWFULLY DO SO) HEREBY EXPRESSLY WAIVES ALL BENEFIT OR ADVANTAGE OF ANY SUCH
LAW, AND COVENANTS THAT IT SHALL NOT, BY RESORT TO ANY SUCH LAW, HINDER, DELAY
OR IMPEDE THE EXECUTION OF ANY POWER HEREIN GRANTED TO THE TRUSTEE, BUT SHALL
SUFFER AND PERMIT THE EXECUTION OF EVERY SUCH POWER AS
50
THOUGH NO SUCH LAW HAS BEEN ENACTED.
SECTION 4.07. RESTRICTED PAYMENTS.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS RESTRICTED
SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY: (1) DECLARE OR PAY ANY DIVIDEND OR MAKE
ANY OTHER PAYMENT OR DISTRIBUTION ON ACCOUNT OF THE COMPANY'S OR ANY OF ITS
RESTRICTED SUBSIDIARIES' EQUITY INTERESTS (INCLUDING, WITHOUT LIMITATION, ANY
PAYMENT IN CONNECTION WITH ANY MERGER OR CONSOLIDATION INVOLVING THE COMPANY OR
ANY OF ITS RESTRICTED SUBSIDIARIES) OR TO THE DIRECT OR INDIRECT HOLDERS OF THE
COMPANY'S OR ANY OF ITS RESTRICTED SUBSIDIARIES' EQUITY INTERESTS IN THEIR
CAPACITY AS SUCH (OTHER THAN DIVIDENDS OR DISTRIBUTIONS PAYABLE IN EQUITY
INTERESTS (OTHER THAN DISQUALIFIED STOCK) OF THE COMPANY OR TO THE COMPANY OR A
RESTRICTED SUBSIDIARY OF THE COMPANY); (2) PURCHASE, REDEEM OR OTHERWISE ACQUIRE
OR RETIRE FOR VALUE (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY
MERGER OR CONSOLIDATION INVOLVING THE COMPANY) ANY EQUITY INTERESTS OF THE
COMPANY OR ANY DIRECT OR INDIRECT PARENT OF THE COMPANY; (3) MAKE ANY PAYMENT ON
OR WITH RESPECT TO, OR PURCHASE, REDEEM, DEFEASE OR OTHERWISE ACQUIRE OR RETIRE
FOR VALUE ANY INDEBTEDNESS THAT IS BY ITS TERMS SUBORDINATED TO THE NOTES OR THE
SUBSIDIARY GUARANTIES, EXCEPT A PAYMENT OF INTEREST OR PRINCIPAL AT THE STATED
MATURITY THEREOF; OR (4) MAKE ANY RESTRICTED INVESTMENT (ALL SUCH PAYMENTS AND
OTHER ACTIONS SET FORTH IN CLAUSES (1) THROUGH (4) ABOVE BEING COLLECTIVELY
REFERRED TO AS "RESTRICTED PAYMENTS"), UNLESS, AT THE TIME OF AND AFTER GIVING
EFFECT TO SUCH RESTRICTED PAYMENT:
(A) NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD OCCUR AS A CONSEQUENCE THEREOF; AND
(B) THE COMPANY WOULD, AT THE TIME OF SUCH RESTRICTED PAYMENT AND
AFTER GIVING PRO FORMA EFFECT THERETO AS IF SUCH RESTRICTED PAYMENT HAD BEEN
MADE AT THE BEGINNING OF THE APPLICABLE FOUR-QUARTER PERIOD, HAVE BEEN PERMITTED
TO INCUR AT LEAST $1.00 OF ADDITIONAL INDEBTEDNESS PURSUANT TO THE FIXED CHARGE
COVERAGE RATIO TEST SET FORTH IN THE FIRST PARAGRAPH OF SECTION 4.09 HEREOF; AND
(C) SUCH RESTRICTED PAYMENT, TOGETHER WITH THE AGGREGATE AMOUNT OF
ALL OTHER RESTRICTED PAYMENTS MADE BY THE COMPANY AND ITS RESTRICTED
SUBSIDIARIES AFTER THE DATE OF THE INDENTURE (EXCLUDING RESTRICTED PAYMENTS
PERMITTED BY CLAUSES (II), (III), (IV), (V), (VII) AND (VIII) OF THE NEXT
SUCCEEDING PARAGRAPH), IS LESS THAN THE SUM, WITHOUT DUPLICATION, OF (I) 50% OF
THE CONSOLIDATED NET INCOME OF THE COMPANY FOR THE PERIOD (TAKEN AS ONE
ACCOUNTING PERIOD) FROM MARCH 31, 1999 TO THE END OF THE COMPANY'S MOST RECENTLY
ENDED FISCAL QUARTER FOR WHICH INTERNAL FINANCIAL STATEMENTS ARE AVAILABLE AT
THE TIME OF SUCH RESTRICTED PAYMENT (OR, IF SUCH CONSOLIDATED NET INCOME FOR
SUCH PERIOD IS A DEFICIT, LESS 100% OF SUCH DEFICIT), PLUS (II) 100% OF THE
AGGREGATE NET CASH PROCEEDS OR FAIR MARKET VALUE OF PRODUCTIVE ASSETS RECEIVED
BY THE COMPANY SINCE THE DATE OF THE INDENTURE AS A CONTRIBUTION TO ITS COMMON
EQUITY CAPITAL OR FROM THE ISSUE OR SALE OF EQUITY INTERESTS OF THE COMPANY
(OTHER THAN DISQUALIFIED STOCK OR DESIGNATED PREFERRED STOCK) OR FROM THE ISSUE
OR SALE OF CONVERTIBLE OR EXCHANGEABLE DISQUALIFIED STOCK OR CONVERTIBLE OR
EXCHANGEABLE DEBT SECURITIES OF THE COMPANY THAT HAVE BEEN CONVERTED INTO OR
EXCHANGED FOR SUCH EQUITY INTERESTS (OTHER THAN EQUITY INTERESTS (OR
DISQUALIFIED STOCK OR DESIGNATED PREFERRED STOCK OR DEBT SECURITIES) SOLD TO A
SUBSIDIARY OF THE COMPANY), PLUS (III) 100% OF THE AGGREGATE NET CASH PROCEEDS
OR FAIR MARKET VALUE OF PRODUCTIVE ASSETS RECEIVED FROM THE DISPOSITION OR SALE
OF ANY RESTRICTED INVESTMENT THAT WAS MADE AFTER THE DATE OF THE INDENTURE LESS,
IN EACH CASE, THE COST OF SUCH DISPOSITION OR SALE, PLUS (IV)
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100% OF THE AMOUNT OF ANY DIVIDENDS PAID IN CASH OR THE FAIR MARKET VALUE (AS
DETERMINED ABOVE) OF ANY PRODUCTIVE ASSETS RECEIVED BY THE COMPANY OR ANY
RESTRICTED SUBSIDIARY AFTER THE DATE OF THE INDENTURE FROM AN UNRESTRICTED
SUBSIDIARY OF THE COMPANY, TO THE EXTENT SUCH DIVIDENDS WERE NOT OTHERWISE
INCLUDED IN CONSOLIDATED NET INCOME OF THE COMPANY FOR SUCH PERIOD, PLUS (V) TO
THE EXTENT THAT ANY UNRESTRICTED SUBSIDIARY OF THE COMPANY IS REDESIGNATED AS A
RESTRICTED SUBSIDIARY AFTER THE DATE OF THE INDENTURE, THE FAIR MARKET VALUE OF
THE COMPANY'S INVESTMENT IN SUCH SUBSIDIARY AS OF THE DATE OF SUCH SUBSIDIARY'S
REDESIGNATION AS A RESTRICTED SUBSIDIARY, PLUS (VI) WITHOUT DUPLICATION OF ANY
AMOUNTS INCLUDED IN CLAUSE (II) ABOVE, 100% OF THE AGGREGATE NET CASH PROCEEDS
OR THE FAIR MARKET VALUE OF PRODUCTIVE ASSETS RECEIVED BY THE COMPANY AS EQUITY
CONTRIBUTIONS (OTHER THAN DISQUALIFIED STOCK OR DESIGNATED PREFERRED STOCK) BY A
HOLDER OF THE EQUITY INTERESTS OF THE COMPANY (EXCLUDING ANY NET CASH PROCEEDS
FROM AN EQUITY CONTRIBUTION WHICH HAS BEEN FINANCED, DIRECTLY OR INDIRECTLY
USING FUNDS (1) BORROWED FROM THE COMPANY OR ANY OF ITS SUBSIDIARIES, UNLESS AND
UNTIL AND TO THE EXTENT SUCH BORROWING IS REPAID OR (2) CONTRIBUTED, EXTENDED,
GUARANTEED OR ADVANCED BY THE COMPANY OR BY ANY OF ITS SUBSIDIARIES).
SO LONG AS NO PAYMENT DEFAULT HAS OCCURRED AND IS CONTINUING OR WOULD
BE CAUSED THEREBY, THE PRECEDING PROVISIONS SHALL NOT PROHIBIT: (I) THE PAYMENT
OF ANY DIVIDEND WITHIN 60 DAYS AFTER THE DATE OF DECLARATION THEREOF, IF AT SAID
DATE OF DECLARATION SUCH PAYMENT WOULD HAVE COMPLIED WITH THE PROVISIONS OF THE
INDENTURE; (II) THE REDEMPTION, REPURCHASE, RETIREMENT, DEFEASANCE OR OTHER
ACQUISITION OF ANY SUBORDINATED INDEBTEDNESS OF THE COMPANY OR ANY RESTRICTED
SUBSIDIARY OR OF ANY EQUITY INTERESTS OF THE COMPANY OR ANY RESTRICTED
SUBSIDIARY IN EXCHANGE FOR, OR OUT OF THE NET CASH PROCEEDS OF THE SUBSTANTIALLY
CONCURRENT SALE (OTHER THAN TO A SUBSIDIARY OF THE COMPANY) OF, EQUITY INTERESTS
OF THE COMPANY (OTHER THAN DISQUALIFIED STOCK), PROVIDED THAT THE AMOUNT OF ANY
SUCH NET CASH PROCEEDS THAT ARE UTILIZED FOR ANY SUCH REDEMPTION, REPURCHASE,
RETIREMENT, DEFEASANCE OR OTHER ACQUISITION SHALL BE EXCLUDED FROM CLAUSE (3)(B)
OF THE PRECEDING PARAGRAPH; (III) THE DEFEASANCE, REDEMPTION, REPURCHASE OR
OTHER ACQUISITION OF SUBORDINATED INDEBTEDNESS OF THE COMPANY OR ANY RESTRICTED
SUBSIDIARY WITH THE NET CASH PROCEEDS FROM AN INCURRENCE OF PERMITTED
REFINANCING INDEBTEDNESS; (IV) THE PAYMENT OF ANY DIVIDEND BY A RESTRICTED
SUBSIDIARY OF THE COMPANY TO THE HOLDERS OF ITS CAPITAL STOCK ON A PRO RATA
BASIS; (V) THE REPURCHASE, REDEMPTION OR OTHER ACQUISITION OR RETIREMENT FOR
VALUE OF ANY EQUITY INTERESTS OF THE COMPANY OR ANY RESTRICTED SUBSIDIARY OF THE
COMPANY HELD BY ANY CURRENT OR FORMER EMPLOYEE, OFFICER OR DIRECTOR OF THE
COMPANY (OR ANY OF ITS RESTRICTED SUBSIDIARIES) PURSUANT TO ANY MANAGEMENT
EQUITY SUBSCRIPTION AGREEMENT, STOCK OPTION AGREEMENT OR OTHER EMPLOYEE PLAN OR
AGREEMENT OR EMPLOYMENT BENEFIT PLAN; PROVIDED THAT THE AGGREGATE PRICE PAID FOR
ALL SUCH REPURCHASED, REDEEMED, ACQUIRED OR RETIRED EQUITY INTERESTS SHALL NOT
EXCEED $2.5 MILLION IN ANY CALENDAR YEAR (PROVIDED THAT IN ANY CALENDAR YEAR
SUCH AMOUNT SHALL BE INCREASED BY THE AMOUNT AVAILABLE FOR USE, BUT NOT USED,
UNDER THIS CLAUSE (V) IN THE IMMEDIATELY PRECEDING YEAR) AND $10.0 MILLION SINCE
THE DATE OF THE INDENTURE; (VI) THE DECLARATION AND PAYMENT OF DIVIDENDS TO
HOLDERS OF ANY CLASS OR SERIES OF DESIGNATED PREFERRED STOCK (OTHER THAN
DISQUALIFIED CAPITAL STOCK) ISSUED AFTER THE DATE OF THE INDENTURE; PROVIDED
THAT, AT THE TIME OF SUCH ISSUANCE, THE COMPANY, AFTER GIVING EFFECT TO SUCH
ISSUANCE ON A PRO FORMA BASIS, WOULD HAVE HAD A FIXED COVERAGE RATIO OF AT LEAST
2.0 TO 1.0; (VII) REPURCHASES OF CAPITAL STOCK DEEMED TO OCCUR UPON THE EXERCISE
OF STOCK OPTIONS IF SUCH CAPITAL STOCK REPRESENTS A PORTION OF THE EXERCISE
PRICE THEREOF; AND (VIII) SO LONG AS NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE
OCCURRED AND BE CONTINUING OR WOULD OCCUR AS A CONSEQUENCE THEREOF, OTHER
RESTRICTED PAYMENTS IN AN AGGREGATE AMOUNT NOT TO EXCEED $10.0 MILLION SINCE THE
DATE OF THE INDENTURE.
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THE AMOUNT OF ALL RESTRICTED PAYMENTS (OTHER THAN CASH) SHALL BE THE
FAIR MARKET VALUE ON THE DATE OF THE RESTRICTED PAYMENT OF THE ASSET(S) OR
SECURITIES PROPOSED TO BE TRANSFERRED OR ISSUED TO OR BY THE COMPANY OR SUCH
RESTRICTED SUBSIDIARY, AS THE CASE MAY BE, PURSUANT TO THE RESTRICTED PAYMENT.
THE FAIR MARKET VALUE OF ANY ASSETS OR SECURITIES THAT ARE REQUIRED TO BE VALUED
BY THIS COVENANT SHALL BE DETERMINED BY THE BOARD OF DIRECTORS WHOSE RESOLUTION
WITH RESPECT THERETO SHALL BE DELIVERED TO THE TRUSTEE. THE BOARD OF DIRECTORS'
DETERMINATION MUST BE BASED UPON AN OPINION OR APPRAISAL ISSUED BY AN
ACCOUNTING, APPRAISAL OR INVESTMENT BANKING FIRM OF NATIONAL STANDING IF THE
FAIR MARKET VALUE EXCEEDS THE GREATER OF 3.0% OF TOTAL ASSETS OR $5.0 MILLION.
NOT LATER THAN THE DATE OF MAKING ANY RESTRICTED PAYMENT, THE COMPANY SHALL
DELIVER TO THE TRUSTEE AN OFFICERS' CERTIFICATE STATING THAT SUCH RESTRICTED
PAYMENT IS PERMITTED AND SETTING FORTH THE BASIS UPON WHICH THE CALCULATIONS
REQUIRED BY THIS SECTION 4.07 WERE COMPUTED, TOGETHER WITH A COPY OF ANY
FAIRNESS OPINION OR APPRAISAL REQUIRED BY THE INDENTURE.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS RESTRICTED
SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY, CREATE OR PERMIT TO EXIST OR BECOME
EFFECTIVE ANY CONSENSUAL ENCUMBRANCE OR RESTRICTION ON THE ABILITY OF ANY
RESTRICTED SUBSIDIARY TO (I) PAY DIVIDENDS OR MAKE ANY OTHER DISTRIBUTIONS ON
ITS CAPITAL STOCK TO THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES, OR WITH
RESPECT TO ANY OTHER INTEREST OR PARTICIPATION IN, OR MEASURED BY, ITS PROFITS,
OR PAY ANY INDEBTEDNESS OWED TO THE COMPANY OR ANY OF ITS RESTRICTED
SUBSIDIARIES, (II) MAKE LOANS OR ADVANCES TO THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES, OR (III) TRANSFER ANY OF ITS PROPERTIES OR ASSETS TO
THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES. HOWEVER, THE PRECEDING
RESTRICTIONS SHALL NOT APPLY TO ENCUMBRANCES OR RESTRICTIONS EXISTING UNDER OR
BY REASON OF: (A) EXISTING INDEBTEDNESS AS IN EFFECT ON THE DATE OF THE
INDENTURE, (B) THE INDENTURE, THE NOTES, THE EXCHANGE NOTES AND THE SUBSIDIARY
GUARANTIES, (C) APPLICABLE LAW REGULATION OR ORDER, (D) INDEBTEDNESS INCURRED BY
A RESTRICTED SUBSIDIARY THAT IS NOT A SUBSIDIARY GUARANTOR IN COMPLIANCE WITH
THE PROVISIONS SET FORTH UNDER SECTION 4.17 HEREOF (E) ANY INSTRUMENT GOVERNING
INDEBTEDNESS OR CAPITAL STOCK OF A PERSON ACQUIRED BY THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES AS IN EFFECT AT THE TIME OF SUCH ACQUISITION (EXCEPT TO
THE EXTENT SUCH INDEBTEDNESS WAS INCURRED IN CONNECTION WITH OR IN CONTEMPLATION
OF SUCH ACQUISITION), WHICH ENCUMBRANCE OR RESTRICTION IS NOT APPLICABLE TO ANY
PERSON, OR THE PROPERTIES OR ASSETS OF ANY PERSON, OTHER THAN THE PERSON, OR THE
PROPERTY OR ASSETS OF THE PERSON, SO ACQUIRED, PROVIDED THAT, IN THE CASE OF
INDEBTEDNESS, SUCH INDEBTEDNESS WAS PERMITTED BY THE TERMS OF THE INDENTURE TO
BE INCURRED, (F) CUSTOMARY NON-ASSIGNMENT PROVISIONS IN LEASES, LICENSES OR
SIMILAR AGREEMENTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS AND
CONSISTENT WITH PAST PRACTICES, (G) PURCHASE MONEY OBLIGATIONS FOR PROPERTY
ACQUIRED IN THE ORDINARY COURSE OF BUSINESS THAT IMPOSE RESTRICTIONS ON THE
PROPERTY SO ACQUIRED OF THE NATURE DESCRIBED IN CLAUSE (III) OF THE PRECEDING
SENTENCE, (H) ANY AGREEMENT FOR THE SALE OR OTHER DISPOSITION OF A RESTRICTED
SUBSIDIARY THAT RESTRICTS DISTRIBUTIONS BY SUCH RESTRICTED SUBSIDIARY PENDING
ITS SALE OR OTHER DISPOSITION, (I) LIENS SECURING INDEBTEDNESS THAT LIMIT THE
RIGHT OF THE DEBTOR TO DISPOSE OF THE ASSETS SUBJECT TO SUCH LIEN; (J)
PROVISIONS WITH RESPECT TO THE DISPOSITION OR DISTRIBUTION OF ASSETS OR PROPERTY
IN JOINT VENTURE AGREEMENTS, ASSET SALE AGREEMENTS, STOCK SALE AGREEMENTS AND
OTHER SIMILAR AGREEMENTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS, (K)
RESTRICTIONS ON CASH OR OTHER DEPOSITS OR NET WORTH IMPOSED BY CUSTOMERS UNDER
CONTRACTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS, (L) ANY ENCUMBRANCE
OR RESTRICTION ON A SECURITIZATION ENTITY EFFECTED IN CONNECTION WITH A
QUALIFIED SECURITIZATION TRANSACTION, (M)
53
INDEBTEDNESS INCURRED AFTER THE DATE OF THE INDENTURE IN ACCORDANCE WITH THE
TERMS OF THE INDENTURE; PROVIDED, THAT THE RESTRICTIONS CONTAINED IN THE
AGREEMENTS GOVERNING SUCH NEW INDEBTEDNESS ARE, IN THE GOOD FAITH JUDGMENT OF
THE BOARD OF DIRECTORS OF THE COMPANY, NOT MATERIALLY LESS FAVORABLE, TAKEN AS A
WHOLE, TO THE HOLDERS OF THE NOTES THAN THOSE CONTAINED IN THE AGREEMENTS
GOVERNING INDEBTEDNESS OUTSTANDING ON THE DATE OF THE INDENTURE, (N) CUSTOMARY
PROVISIONS IN AGREEMENTS WITH RESPECT TO PERMITTED JOINT VENTURES, AND (O) ANY
ENCUMBRANCES OR RESTRICTIONS IMPOSED BY ANY AMENDMENTS, MODIFICATIONS,
RESTATEMENTS, RENEWALS, INCREASES, SUPPLEMENTS, REFUNDINGS, REPLACEMENTS OR
REFINANCINGS OF THE CONTRACTS, INSTRUMENTS OR OBLIGATIONS REFERRED TO IN CLAUSES
(A) THROUGH (N) ABOVE; PROVIDED THAT SUCH AMENDMENTS, MODIFICATIONS,
RESTATEMENTS, RENEWALS, INCREASES, SUPPLEMENTS, REFUNDINGS, REPLACEMENTS OR
REFINANCINGS ARE, IN THE GOOD FAITH JUDGMENT OF THE BOARD OF DIRECTORS, NO MORE
RESTRICTIVE WITH RESPECT TO SUCH DIVIDEND AND OTHER PAYMENT RESTRICTIONS THAN
THOSE CONTAINED IN THE DIVIDEND OR OTHER PAYMENT RESTRICTIONS PRIOR TO SUCH
AMENDMENT, MODIFICATION, RESTATEMENT, RENEWAL, INCREASE, SUPPLEMENT, REFUNDING,
REPLACEMENT OR REFINANCING.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS SUBSIDIARIES
TO, DIRECTLY OR INDIRECTLY, CREATE, INCUR, ISSUE, ASSUME, GUARANTEE OR OTHERWISE
BECOME DIRECTLY OR INDIRECTLY LIABLE, CONTINGENTLY OR OTHERWISE, WITH RESPECT TO
(COLLECTIVELY, "INCUR") ANY INDEBTEDNESS (INCLUDING ACQUIRED DEBT), AND THE
COMPANY SHALL NOT ISSUE ANY DISQUALIFIED STOCK AND SHALL NOT PERMIT ANY OF ITS
RESTRICTED SUBSIDIARIES TO ISSUE ANY SHARES OF PREFERRED STOCK; PROVIDED,
HOWEVER, THAT THE COMPANY MAY INCUR INDEBTEDNESS (INCLUDING ACQUIRED DEBT) OR
ISSUE DISQUALIFIED STOCK, AND ANY SUBSIDIARY GUARANTOR MAY INCUR INDEBTEDNESS
(INCLUDING ACQUIRED DEBT) OR ISSUE PREFERRED STOCK, IF THE FIXED CHARGE COVERAGE
RATIO FOR THE COMPANY'S MOST RECENTLY ENDED FOUR FULL FISCAL QUARTERS FOR WHICH
INTERNAL FINANCIAL STATEMENTS ARE AVAILABLE IMMEDIATELY PRECEDING THE DATE ON
WHICH SUCH ADDITIONAL INDEBTEDNESS IS INCURRED OR SUCH DISQUALIFIED STOCK OR
PREFERRED STOCK IS ISSUED WOULD HAVE BEEN AT LEAST 2.0 TO 1.0, DETERMINED ON A
PRO FORMA BASIS (INCLUDING A PRO FORMA APPLICATION OF THE NET PROCEEDS
THEREFROM) AS IF THE ADDITIONAL INDEBTEDNESS HAD BEEN INCURRED OR THE PREFERRED
STOCK OR DISQUALIFIED STOCK HAD BEEN ISSUED, AS THE CASE MAY BE, AT THE
BEGINNING OF SUCH FOUR-QUARTER PERIOD.
THE FIRST PARAGRAPH OF THIS SECTION 4.09 SHALL NOT PROHIBIT THE
INCURRENCE OF ANY OF THE FOLLOWING ITEMS OF INDEBTEDNESS (COLLECTIVELY,
"PERMITTED DEBT"):
(I) THE INCURRENCE BY THE COMPANY OR ANY RESTRICTED SUBSIDIARY OF
INDEBTEDNESS AND LETTERS OF CREDIT UNDER CREDIT FACILITIES IN AN
AGGREGATE PRINCIPAL AMOUNT AT ANY ONE TIME OUTSTANDING (WITH LETTERS
OF CREDIT BEING DEEMED TO HAVE A PRINCIPAL AMOUNT EQUAL TO THE FACE
AMOUNT THEREOF) NOT TO EXCEED THE POSITIVE DIFFERENCE BETWEEN (A)
THE GREATER OF (1) $330.0 MILLION AND (2) THE AMOUNT OF THE BORROWING
BASE AND (B) THE SUM OF (1) ALL OUTSTANDING INDEBTEDNESS
INCURRED IN QUALIFIED SECURITIZATION TRANSACTIONS, AND (2) THE
AGGREGATE AMOUNT OF ALL NET PROCEEDS OF ASSET SALES APPLIED BY THE
COMPANY OR ANY OF ITS SUBSIDIARIES TO REPAY ANY INDEBTEDNESS UNDER THE
CREDIT FACILITIES PURSUANT TO SECTION 4.10 HEREOF;
(II) THE INCURRENCE BY THE COMPANY AND ITS RESTRICTED SUBSIDIARIES OF THE
EXISTING INDEBTEDNESS;
54
(III) THE INCURRENCE BY THE COMPANY AND THE SUBSIDIARY GUARANTORS OF
INDEBTEDNESS REPRESENTED BY THE NOTES AND THE RELATED SUBSIDIARY
GUARANTIES TO BE ISSUED ON THE DATE OF THE INDENTURE AND BY THE
EXCHANGE NOTES AND THE RELATED SUBSIDIARY GUARANTIES TO BE ISSUED
PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT;
(IV) THE INCURRENCE BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES OF
INDEBTEDNESS REPRESENTED BY CAPITAL LEASE OBLIGATIONS, MORTGAGE
FINANCINGS OR PURCHASE MONEY OBLIGATIONS, IN EACH CASE, INCURRED FOR
THE PURPOSE OF FINANCING ALL OR ANY PART OF THE PURCHASE PRICE OR COST
OF CONSTRUCTION OR IMPROVEMENT OF PROPERTY, PLANT OR EQUIPMENT USED IN
THE BUSINESS OF THE COMPANY OR SUCH RESTRICTED SUBSIDIARY, IN AN
AGGREGATE PRINCIPAL AMOUNT, INCLUDING ALL PERMITTED REFINANCING
INDEBTEDNESS INCURRED TO REFUND, REFINANCE OR REPLACE ANY INDEBTEDNESS
INCURRED PURSUANT TO THIS CLAUSE (IV), NOT TO EXCEED 5.0% OF TOTAL
ASSETS AT ANY TIME OUTSTANDING;
(V) THE INCURRENCE BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES OF
PERMITTED REFINANCING INDEBTEDNESS IN EXCHANGE FOR, OR THE NET PROCEEDS
OF WHICH ARE USED TO REFUND, REFINANCE OR REPLACE INDEBTEDNESS (OTHER
THAN INTERCOMPANY INDEBTEDNESS) THAT WAS PERMITTED BY THE INDENTURE TO
BE INCURRED UNDER THE FIRST PARAGRAPH OF THIS SECTION 4.09 OR CLAUSES
(II), (III), (IV), (V), OR (X) OF THIS PARAGRAPH;
(VI) THE INCURRENCE BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES
OF INTERCOMPANY INDEBTEDNESS BETWEEN OR AMONG THE COMPANY AND ANY OF
ITS RESTRICTED SUBSIDIARIES; PROVIDED, HOWEVER, THAT:(A)IFTHE
COMPANY OR ANY SUBSIDIARY GUARANTOR IS THE OBLIGOR ON SUCH
INDEBTEDNESS, SUCH INDEBTEDNESS MUST BE EXPRESSLY SUBORDINATED TO
THE PRIOR PAYMENT IN FULL IN CASH OF ALL OBLIGATIONS WITH RESPECT TO
THE NOTES, IN THE CASE OF THE COMPANY, OR THE SUBSIDIARY GUARANTY, IN
THE CASE OF A SUBSIDIARY GUARANTOR; AND (B) (1) ANY SUBSEQUENT
ISSUANCE OR TRANSFER OF EQUITY INTERESTS THAT RESULTS IN ANY
SUCH INDEBTEDNESS BEING HELD BY A PERSON OTHER THAN THE COMPANY OR A
RESTRICTED SUBSIDIARY THEREOF AND (2) ANY SALE OR OTHER TRANSFER OF
ANY SUCH INDEBTEDNESS TO A PERSON THAT IS NOT EITHER THE COMPANY OR A
RESTRICTED SUBSIDIARY THEREOF; SHALL BE DEEMED, IN EACH CASE, TO
CONSTITUTE AN INCURRENCE OF SUCH INDEBTEDNESS BY THE COMPANY OR SUCH
SUBSIDIARY, AS THE CASE MAY BE, THAT WAS NOT PERMITTED BY THIS
CLAUSE (VI);
(VII) THE INCURRENCE BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES OF
HEDGING OBLIGATIONS THAT ARE INCURRED FOR THE PURPOSE OF FIXING OR
HEDGING (A) INTEREST RATE RISK WITH RESPECT TO ANY FLOATING RATE
INDEBTEDNESS THAT IS PERMITTED BY THE TERMS OF THIS INDENTURE TO BE
OUTSTANDING OR (B) THE VALUE OF FOREIGN CURRENCIES OR THE COST OF
COMMODITIES PURCHASED OR RECEIVED BY THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES;
(VIII) (A) THE GUARANTY BY THE COMPANY OR ANY OF THE SUBSIDIARY
GUARANTORS OF INDEBTEDNESS OF THE COMPANY OR A SUBSIDIARY
GUARANTOR THAT WAS PERMITTED TO BE INCURRED BY ANOTHER
PROVISION OF THIS COVENANT;
(B) THE GUARANTY BY ANY RESTRICTED SUBSIDIARY OF THE COMPANY THAT
IS NOT A SUBSIDIARY GUARANTOR OF INDEBTEDNESS OF THE COMPANY
OR ANOTHER RESTRICTED SUBSIDIARY OF THE COMPANY THAT WAS
PERMITTED TO BE INCURRED BY ANOTHER PROVISION OF THIS
COVENANT;
(IX) THE ACCRUAL OF INTEREST, THE ACCRETION OR AMORTIZATION OF ORIGINAL
ISSUE DISCOUNT, THE PAYMENT OF INTEREST ON ANY INDEBTEDNESS IN THE FORM
OF ADDITIONAL INDEBTEDNESS WITH THE
55
SAME TERMS, AND THE PAYMENT OF DIVIDENDS ON DISQUALIFIED STOCK IN THE
FORM OF ADDITIONAL SHARES OF THE SAME CLASS OF DISQUALIFIED STOCK;
PROVIDED, IN EACH SUCH CASE, THAT THE AMOUNT THEREOF IS INCLUDED IN
FIXED CHARGES OF THE COMPANY AS ACCRUED;
(X) THE INCURRENCE BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES OF
ADDITIONAL INDEBTEDNESS OR DISQUALIFIED STOCK IN AN AGGREGATE PRINCIPAL
AMOUNT (OR ACCRETED VALUE, AS APPLICABLE) AT ANY TIME OUTSTANDING,
INCLUDING ALL PERMITTED REFINANCING INDEBTEDNESS INCURRED TO REFUND,
REFINANCE OR REPLACE ANY INDEBTEDNESS INCURRED PURSUANT TO THIS CLAUSE
(X), NOT TO EXCEED $25.0 MILLION;
(XI) THE INCURRENCE BY THE COMPANY'S UNRESTRICTED SUBSIDIARIES OF
NON-RECOURSE DEBT OR THE ISSUANCE OF PREFERRED STOCK, PROVIDED,
HOWEVER, THAT IF ANY SUCH INDEBTEDNESS CEASES TO BE NON-RECOURSE DEBT
OF AN UNRESTRICTED SUBSIDIARY, SUCH EVENT SHALL BE DEEMED TO CONSTITUTE
AN INCURRENCE OF INDEBTEDNESS BY A RESTRICTED SUBSIDIARY THAT WAS NOT
PERMITTED BY THIS CLAUSE (XI);
(XII) THE INCURRENCE OF INDEBTEDNESS OWING TO ANY INSURANCE COMPANY IN
CONNECTION WITH THE FINANCING OF INSURANCE PREMIUMS PERMITTED BY SUCH
INSURANCE COMPANY IN THE ORDINARY COURSE OF BUSINESS;
(XIII) THE INCURRENCE OF INDEBTEDNESS (INCLUDING LETTERS OF CREDIT) IN RESPECT
OF WORKERS' COMPENSATION CLAIMS, SELF-INSURANCE OBLIGATIONS,
PERFORMANCE, SURETY, BID OR SIMILAR BONDS AND COMPLETION GUARANTEES
PROVIDED BY THE COMPANY OR ONE OF ITS RESTRICTED SUBSIDIARIES IN THE
ORDINARY COURSE OF BUSINESS AND CONSISTENT WITH PAST PRACTICES;
(XIV) INDEBTEDNESS ARISING FROM AGREEMENTS OF THE COMPANY OR A
RESTRICTED SUBSIDIARY PROVIDING FOR INDEMNIFICATION, ADJUSTMENT OF
PURCHASE PRICE, EARN OUT OR OTHER SIMILAR OBLIGATIONS, IN EACH CASE,
INCURRED OR ASSUMED IN CONNECTION WITH THE DISPOSITION OF ANY
BUSINESS, ASSETS OR A RESTRICTED SUBSIDIARY, OTHER THAN GUARANTEES
OF INDEBTEDNESS INCURRED BY ANY PERSON ACQUIRING ALL OR ANY PORTION
OF SUCH BUSINESS, ASSETS OR RESTRICTED SUBSIDIARY FOR THE PURPOSE
OF FINANCING SUCH ACQUISITION; PROVIDED THAT THE MAXIMUM ASSUMABLE
LIABILITY IN RESPECT OF ALL SUCH INDEBTEDNESS SHALL AT NO TIME EXCEED
THE GROSS PROCEEDS ACTUALLY RECEIVED BY THE COMPANY AND ITS
RESTRICTED SUBSIDIARIES IN CONNECTION WITH SUCH DISPOSITION;
(XV) THE INCURRENCE BY A SECURITIZATION ENTITY OF INDEBTEDNESS IN A
QUALIFIED SECURITIZATION TRANSACTION THAT IS NON-RECOURSE DEBT (EXCEPT
FOR STANDARD SECURITIZATION UNDERTAKINGS) WITH RESPECT TO THE COMPANY
AND ITS OTHER RESTRICTED SUBSIDIARIES;
(XVI) INDEBTEDNESS OF THE COMPANY EVIDENCED BY PROMISSORY NOTES SUBORDINATED
TO THE NOTES AND THE EXCHANGE NOTES ISSUED TO CURRENT OR FORMER
EMPLOYEES, DIRECTORS, OFFICERS OR CONSULTANTS OF THE COMPANY AND ITS
SUBSIDIARIES IN LIEU OF CASH PAYMENT FOR ANY EQUITY INTEREST OF THE
COMPANY BEING REPURCHASED FROM SUCH PERSONS; PROVIDED, THAT THE
AGGREGATE AMOUNT OF SUCH INDEBTEDNESS INCURRED DOES NOT EXCEED $2.5
MILLION IN ANY CALENDAR YEAR (PROVIDED THAT IN ANY CALENDAR YEAR SUCH
AMOUNT SHALL BE INCREASED BY THE AMOUNT AVAILABLE FOR INCURRENCE, BUT
NOT INCURRED, UNDER THIS CLAUSE (XVI) IN ANY PRECEDING YEAR) AND $10.0
MILLION SINCE THE DATE OF THE INDENTURE;
(XVII) GUARANTIES OF INDEBTEDNESS OF ANY OTHER PERSON INCURRED BY THE COMPANY
OR A RESTRICTED
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SUBSIDIARY IN THE ORDINARY COURSE OF BUSINESS IN AN AGGREGATE
PRINCIPAL AMOUNT NOT TO EXCEED $5.0 MILLION AT ANY ONE TIME
OUTSTANDING;
(XVIII) INDEBTEDNESS CONSISTING OF TAKE-OR-PAY OBLIGATIONS CONTAINED IN SUPPLY
AGREEMENTS ENTERED INTO BY THE COMPANY OR ITS SUBSIDIARIES IN THE
ORDINARY COURSE; AND
(XIX) THE INCURRENCE BY ANY FOREIGN SUBSIDIARY OF INDEBTEDNESS THAT IS NOT
PROHIBITED BY SECTION 4.17 HEREOF.
FOR PURPOSES OF DETERMINING COMPLIANCE WITH THIS SECTION 4.09 IN THE
EVENT THAT AN ITEM OF PROPOSED INDEBTEDNESS MEETS THE CRITERIA OF MORE THAN ONE
OF THE CATEGORIES OF PERMITTED DEBT DESCRIBED IN CLAUSES (I) THROUGH (XIX)
ABOVE, OR IS ENTITLED TO BE INCURRED PURSUANT TO THE FIRST PARAGRAPH OF THIS
COVENANT, THE COMPANY SHALL BE PERMITTED TO CLASSIFY SUCH ITEM OF INDEBTEDNESS
ON THE DATE OF ITS INCURRENCE, OR LATER RECLASSIFY ALL OR A PORTION OF SUCH ITEM
OF INDEBTEDNESS, IN ANY MANNER THAT COMPLIES WITH THIS COVENANT. INDEBTEDNESS
UNDER CREDIT FACILITIES OUTSTANDING ON THE DATE ON WHICH NOTES ARE FIRST ISSUED
AND AUTHENTICATED UNDER THE INDENTURE SHALL BE DEEMED TO HAVE BEEN INCURRED ON
SUCH DATE IN RELIANCE ON THE EXCEPTION PROVIDED BY CLAUSE (1) OF THE DEFINITION
OF PERMITTED DEBT.
SECTION 4.10. ASSET SALES.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS RESTRICTED
SUBSIDIARIES TO, CONSUMMATE AN ASSET SALE UNLESS: (I) THE COMPANY OR THE
RESTRICTED SUBSIDIARY, AS THE CASE MAY BE, RECEIVES CONSIDERATION AT THE TIME OF
SUCH ASSET SALE AT LEAST EQUAL TO THE FAIR MARKET VALUE OF THE ASSETS OR EQUITY
INTERESTS ISSUED OR SOLD OR OTHERWISE DISPOSED OF (AS DETERMINED IN GOOD FAITH
BY THE COMPANY); (II) SUCH FAIR MARKET VALUE IS DETERMINED BY THE COMPANY'S
BOARD OF DIRECTORS AND EVIDENCED BY A RESOLUTION OF THE BOARD OF DIRECTORS SET
FORTH IN AN OFFICERS' CERTIFICATE DELIVERED TO THE TRUSTEE; AND (III) AT LEAST
75% OF THE CONSIDERATION THEREFOR RECEIVED BY THE COMPANY OR SUCH RESTRICTED
SUBSIDIARY IS IN THE FORM OF CASH OR CASH EQUIVALENTS. FOR PURPOSES OF THIS
PROVISION, EACH OF THE FOLLOWING SHALL BE DEEMED TO BE CASH: (A) ANY LIABILITIES
(AS SHOWN ON THE COMPANY'S OR SUCH RESTRICTED SUBSIDIARY'S MOST RECENT BALANCE
SHEET) OF THE COMPANY OR ANY RESTRICTED SUBSIDIARY (OTHER THAN CONTINGENT
LIABILITIES AND LIABILITIES THAT ARE BY THEIR TERMS SUBORDINATED TO THE NOTES OR
ANY SUBSIDIARY GUARANTY) THAT ARE ASSUMED BY THE TRANSFEREE OF ANY SUCH ASSETS
PURSUANT TO A CUSTOMARY NOVATION AGREEMENT THAT RELEASES THE COMPANY OR SUCH
RESTRICTED SUBSIDIARY FROM FURTHER LIABILITY; (B) ANY SECURITIES, NOTES OR OTHER
OBLIGATIONS RECEIVED BY THE COMPANY OR ANY SUCH RESTRICTED SUBSIDIARY FROM SUCH
TRANSFEREE THAT ARE CONVERTED BY THE COMPANY OR SUCH RESTRICTED SUBSIDIARY INTO
CASH WITHIN 180 DAYS AFTER THE CONSUMMATION OF SUCH ASSET SALE (TO THE EXTENT OF
THE CASH RECEIVED IN THAT CONVERSION); AND (C) ANY DESIGNATED NONCASH
CONSIDERATION RECEIVED BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES IN
SUCH ASSET SALE; PROVIDED THAT THE AGGREGATE FAIR MARKET VALUE (AS DETERMINED
ABOVE) OF SUCH DESIGNATED NONCASH CONSIDERATION, TAKEN TOGETHER WITH THE FAIR
MARKET VALUE AT THE TIME OF RECEIPT OF ALL OTHER DESIGNATED NONCASH
CONSIDERATION RECEIVED PURSUANT TO THIS CLAUSE (C) LESS THE AMOUNT OF NET
PROCEEDS PREVIOUSLY REALIZED IN CASH FROM SUCH EARLIER RECEIVED DESIGNATED
NONCASH CONSIDERATION IS LESS THAN THE GREATER OF 5.0% OF TOTAL ASSETS OR $25.0
MILLION AT THE TIME OF THE RECEIPT OF SUCH DESIGNATED NONCASH CONSIDERATION
(WITH THE FAIR MARKET VALUE OF EACH ITEM OF DESIGNATED NONCASH CONSIDERATION
BEING MEASURED AT THE TIME RECEIVED AND WITHOUT GIVING EFFECT TO SUBSEQUENT
CHANGES IN VALUE).
WITHIN 365 DAYS AFTER THE RECEIPT OF ANY NET PROCEEDS FROM AN ASSET
SALE, THE
57
COMPANY SHALL APPLY SUCH NET PROCEEDS AT ITS OPTION: (I) TO REPAY SENIOR DEBT
AND, IF THE SENIOR DEBT REPAID IS REVOLVING CREDIT INDEBTEDNESS, TO
CORRESPONDINGLY REDUCE COMMITMENTS WITH RESPECT THERETO; (II) TO ACQUIRE ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF, OR A MAJORITY OF THE VOTING STOCK OF,
ANOTHER PERMITTED BUSINESS; (III) TO MAKE CAPITAL EXPENDITURES; AND/OR (IV) TO
ACQUIRE OTHER LONG-TERM ASSETS THAT ARE USED OR USEFUL IN A PERMITTED BUSINESS.
PENDING THE FINAL APPLICATION OF ANY SUCH NET PROCEEDS, THE COMPANY MAY
TEMPORARILY REDUCE REVOLVING CREDIT BORROWINGS OR OTHERWISE INVEST SUCH NET
PROCEEDS IN ANY MANNER THAT IS NOT PROHIBITED BY THE INDENTURE. ANY NET PROCEEDS
FROM ASSET SALES THAT ARE NOT APPLIED OR INVESTED AS PROVIDED IN THE PRECEDING
PARAGRAPH SHALL CONSTITUTE "EXCESS PROCEEDS." WHEN THE AGGREGATE AMOUNT OF
EXCESS PROCEEDS EXCEEDS $10.0 MILLION, THE COMPANY SHALL MAKE AN ASSET SALE
OFFER TO ALL HOLDERS OF NOTES AND ALL HOLDERS OF OTHER INDEBTEDNESS THAT IS PARI
PASSU WITH THE NOTES CONTAINING PROVISIONS SIMILAR TO THOSE SET FORTH IN THE
INDENTURE WITH RESPECT TO OFFERS TO PURCHASE OR REDEEM WITH THE PROCEEDS OF
SALES OF ASSETS TO PURCHASE THE MAXIMUM PRINCIPAL AMOUNT OF NOTES AND SUCH OTHER
PARI PASSU INDEBTEDNESS THAT MAY BE PURCHASED OUT OF THE EXCESS PROCEEDS. THE
OFFER PRICE IN ANY ASSET SALE OFFER SHALL BE EQUAL TO 100% OF PRINCIPAL AMOUNT
PLUS ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES, IF ANY, TO THE DATE OF
PURCHASE, AND SHALL BE PAYABLE IN CASH. IF ANY EXCESS PROCEEDS REMAIN AFTER
CONSUMMATION OF AN ASSET SALE OFFER, THE COMPANY MAY USE SUCH EXCESS PROCEEDS
FOR ANY PURPOSE NOT OTHERWISE PROHIBITED BY THE INDENTURE. IF THE AGGREGATE
PRINCIPAL AMOUNT OF NOTES AND SUCH OTHER PARI PASSU INDEBTEDNESS TENDERED INTO
SUCH ASSET SALE OFFER EXCEEDS THE AMOUNT OF EXCESS PROCEEDS, THE TRUSTEE SHALL
SELECT THE NOTES AND SUCH OTHER PARI PASSU INDEBTEDNESS TO BE PURCHASED ON A PRO
RATA BASIS BASED ON THE PRINCIPAL AMOUNT OF NOTES AND SUCH OTHER PARI PASSU
INDEBTEDNESS TENDERED. UPON COMPLETION OF EACH ASSET SALE OFFER, THE AMOUNT OF
EXCESS PROCEEDS SHALL BE RESET AT ZERO.
THE COMPANY SHALL COMPLY WITH THE REQUIREMENTS OF RULE 14E-1 UNDER
THE EXCHANGE ACT AND ANY OTHER SECURITIES LAWS AND REGULATIONS THEREUNDER TO THE
EXTENT SUCH LAWS AND REGULATIONS ARE APPLICABLE IN CONNECTION WITH EACH
REPURCHASE OF NOTES PURSUANT TO AN ASSET SALE OFFER. TO THE EXTENT THAT THE
PROVISIONS OF ANY SECURITIES LAWS OR REGULATIONS CONFLICT WITH THIS SECTION
4.10, THE COMPANY SHALL COMPLY WITH THE APPLICABLE SECURITIES LAWS AND
REGULATIONS AND SHALL NOT BE DEEMED TO HAVE BREACHED ITS OBLIGATIONS UNDER THIS
SECTION 4.10 BY VIRTUE OF SUCH CONFLICT.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS RESTRICTED
SUBSIDIARIES TO, MAKE ANY PAYMENT TO, OR SELL, LEASE, TRANSFER OR OTHERWISE
DISPOSE OF ANY OF ITS PROPERTIES OR ASSETS TO, OR PURCHASE ANY PROPERTY OR
ASSETS FROM, OR ENTER INTO OR MAKE OR AMEND ANY TRANSACTION, CONTRACT,
AGREEMENT, UNDERSTANDING, LOAN, ADVANCE OR GUARANTEE WITH, OR FOR THE BENEFIT
OF, ANY AFFILIATE (EACH, AN "AFFILIATE TRANSACTION"), UNLESS (A) SUCH AFFILIATE
TRANSACTION IS ON TERMS THAT ARE NO LESS FAVORABLE TO THE COMPANY OR THE
RELEVANT RESTRICTED SUBSIDIARY THAN THOSE THAT WOULD HAVE BEEN OBTAINED IN A
COMPARABLE TRANSACTION BY THE COMPANY OR SUCH RESTRICTED SUBSIDIARY WITH AN
UNRELATED PERSON AND (B) THE COMPANY DELIVERS TO THE TRUSTEE (I) WITH RESPECT TO
ANY AFFILIATE TRANSACTION OR SERIES OF RELATED AFFILIATE TRANSACTIONS INVOLVING
AGGREGATE CONSIDERATION IN EXCESS OF $2.5 MILLION, A RESOLUTION OF THE BOARD OF
DIRECTORS SET FORTH IN AN OFFICERS' CERTIFICATE CERTIFYING THAT SUCH AFFILIATE
TRANSACTION COMPLIES WITH THIS COVENANT AND THAT SUCH AFFILIATE TRANSACTION HAS
BEEN APPROVED BY A MAJORITY OF THE DISINTERESTED MEMBERS OF THE BOARD OF
DIRECTORS AND (II) WITH RESPECT TO ANY AFFILIATE TRANSACTION OR SERIES OF
RELATED AFFILIATE TRANSACTIONS INVOLVING AGGREGATE CONSIDERATION IN EXCESS OF
$7.5 MILLION, AN OPINION ISSUED BY AN ACCOUNTING, APPRAISAL OR INVESTMENT
BANKING FIRM OF NATIONAL STANDING
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THAT SUCH AFFILIATE TRANSACTION COMPLIES WITH THIS SECTION 4.11.
THE FOLLOWING ITEMS SHALL NOT BE DEEMED TO BE AFFILIATE TRANSACTIONS
AND, THEREFORE, SHALL NOT BE SUBJECT TO THE PROVISIONS OF THE PRIOR PARAGRAPH:
(I) ANY EMPLOYMENT AGREEMENT ENTERED INTO BY THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES IN THE ORDINARY COURSE OF BUSINESS AND CONSISTENT WITH
THE PAST PRACTICE OF THE COMPANY OR SUCH RESTRICTED SUBSIDIARY; (II)
TRANSACTIONS BETWEEN OR AMONG THE COMPANY AND/OR ITS RESTRICTED SUBSIDIARIES;
(III) TRANSACTIONS WITH A PERSON THAT IS AN AFFILIATE OF THE COMPANY SOLELY
BECAUSE THE COMPANY OWNS AN EQUITY INTEREST IN SUCH PERSON; (IV) PAYMENT OF
REASONABLE DIRECTORS FEES TO PERSONS WHO ARE NOT OTHERWISE AFFILIATES OF THE
COMPANY; (V) SALES OF EQUITY INTERESTS (OTHER THAN DISQUALIFIED STOCK) TO
AFFILIATES OF THE COMPANY; (VI) RESTRICTED PAYMENTS THAT ARE PERMITTED BY
SECTION 4.07 HEREOF (VII) PROVIDING INDEMNITY TO CURRENT OR FORMER OFFICERS,
DIRECTORS, EMPLOYEES OR CONSULTANTS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES AS
DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS OF THE COMPANY; (VIII) THE
PAYMENT OF CUSTOMARY MANAGEMENT, CONSULTING AND ADVISORY FEES AND RELATED
EXPENSES TO HIDDEN CREEK OR ITS AFFILIATES CONSISTENT WITH HIDDEN CREEK'S PAST
PRACTICES, INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ACQUISITIONS,
DIVESTITURES OR FINANCINGS BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES;
(IX) PERFORMANCE OF OBLIGATIONS OF THE COMPANY OR ANY OF ITS RESTRICTED
SUBSIDIARIES UNDER THE TERMS OF ANY AGREEMENT TO WHICH THE COMPANY OR SUCH
RESTRICTED SUBSIDIARY IS A PARTY AS OF THE DATE OF THE INDENTURE AND WHICH IS
DESCRIBED UNDER THE CAPTION "CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS" IN
THE OFFERING MEMORANDUM DATED MAY 25, 1999, WITH REGARD TO THE COMPANY'S 11 1/2%
SENIOR SUBORDINATED NOTES DUE 2009, AND ANY SIMILAR AGREEMENTS ENTERED INTO
AFTER THE DATE OF THE INDENTURE AS SUCH AGREEMENTS MAY BE AMENDED OR MODIFIED
FROM TIME TO TIME; PROVIDED, HOWEVER, THAT THE EXISTENCE OF, OR THE PERFORMANCE
BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES OF OBLIGATIONS UNDER, ANY
FUTURE AMENDMENT TO ANY SUCH EXISTING AGREEMENT OR UNDER ANY SIMILAR AGREEMENT
ENTERED INTO AFTER THE DATE OF THE INDENTURE SHALL BE PERMITTED BY THIS CLAUSE
TO THE EXTENT THAT THE TERMS OF ANY SUCH AMENDMENT OR SIMILAR AGREEMENT ARE NOT
MORE DISADVANTAGEOUS TO THE HOLDERS IN ANY MATERIAL RESPECT THAN THE TERMS OF
THE AGREEMENTS IN PLACE ON THE DATE OF THE INDENTURE; (X) THE GRANT OF STOCK
OPTIONS, RESTRICTED STOCK OR SIMILAR RIGHTS TO THE COMPANY'S EMPLOYEES, AND
DIRECTORS AND CONSULTANTS PURSUANT TO PLANS APPROVED BY THE BOARD OF DIRECTORS
OF THE COMPANY; (XI) TRANSACTIONS EFFECTED AS PART OF A QUALIFIED SECURITIZATION
TRANSACTION; (XII) LOANS OR ADVANCES TO EMPLOYEES OR CONSULTANTS IN THE ORDINARY
COURSE OF BUSINESS AND CONSISTENT WITH PAST PRACTICES, WHICH ARE APPROVED BY A
MAJORITY OF THE BOARD OF DIRECTORS OF THE COMPANY IN GOOD FAITH; AND (XIII)
TRANSACTIONS WITH CUSTOMERS, JOINT VENTURE PARTNERS, CLIENTS, SUPPLIERS, OR
PURCHASERS OR SELLERS OF GOODS OR SERVICES, IN EACH CASE IN THE ORDINARY COURSE
OF BUSINESS AND OTHERWISE IN COMPLIANCE WITH THE TERMS OF THE INDENTURE WHICH
ARE FAIR TO THE COMPANY OR ITS RESTRICTED SUBSIDIARIES, IN THE REASONABLE
DETERMINATION OF THE BOARD OF DIRECTORS OF THE COMPANY.
SECTION 4.12. LIENS.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS RESTRICTED
SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY, CREATE, INCUR, ASSUME OR SUFFER TO
EXIST ANY LIEN OF ANY KIND ON ANY ASSET NOW OWNED OR HEREAFTER ACQUIRED, EXCEPT
PERMITTED LIENS.
SECTION 4.13. BUSINESS ACTIVITIES.
THE COMPANY AND ITS RESTRICTED SUBSIDIARIES SHALL BE AT ALL TIMES
ENGAGED PRIMARILY IN PERMITTED BUSINESSES.
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SECTION 4.14. CORPORATE EXISTENCE.
SUBJECT TO ARTICLE 5 HEREOF, THE COMPANY SHALL DO OR CAUSE TO BE DONE
ALL THINGS NECESSARY TO PRESERVE AND KEEP IN FULL FORCE AND EFFECT (I) ITS
CORPORATE EXISTENCE, AND THE CORPORATE, PARTNERSHIP OR OTHER EXISTENCE OF EACH
OF ITS SUBSIDIARIES, IN ACCORDANCE WITH THE RESPECTIVE ORGAN IZATIONAL DOCUMENTS
(AS THE SAME MAY BE AMENDED FROM TIME TO TIME) OF THE COMPANY OR ANY SUCH
SUBSIDIARY AND (II) THE RIGHTS (CHARTER AND STATUTORY), LICENSES AND FRANCHISES
OF THE COMPANY AND ITS SUBSIDIARIES; PROVIDED, HOWEVER, THAT THE COMPANY SHALL
NOT BE REQUIRED TO PRESERVE ANY SUCH RIGHT, LICENSE OR FRANCHISE, OR THE
CORPORATE, PARTNERSHIP OR OTHER EXISTENCE OF ANY OF ITS SUBSIDIARIES, IF THE
BOARD OF DIRECTORS SHALL DETERMINE THAT THE PRESERVATION THEREOF IS NO LONGER
DESIRABLE IN THE CONDUCT OF THE BUSINESS OF THE COMPANY AND ITS SUBSIDIARIES,
TAKEN AS A WHOLE, AND THAT THE LOSS THEREOF IS NOT ADVERSE IN ANY MATERIAL
RESPECT TO THE HOLDERS OF THE NOTES.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(A) UPON THE OCCURRENCE OF A CHANGE OF CONTROL, IF THE COMPANY HAS
NOT PREVIOUSLY ISSUED AN IRREVOCABLE NOTICE OF REDEMPTION OF ALL OF THE NOTES ON
THE TERMS SET FORTH IN SECTION 3.07(A) HEREOF, THE COMPANY SHALL MAKE AN OFFER
(A "CHANGE OF CONTROL OFFER") TO EACH HOLDER TO REPURCHASE ALL OR ANY PART
(EQUAL TO $1,000 OR AN INTEGRAL MULTIPLE THEREOF) OF EACH HOLDER'S NOTES AT A
PURCHASE PRICE EQUAL TO 101% OF THE AGGREGATE PRINCIPAL AMOUNT THEREOF PLUS
ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE DATE
OF PURCHASE (THE "CHANGE OF CONTROL PAYMENT"). WITHIN 30 DAYS FOLLOWING ANY
CHANGE OF CONTROL, THE COMPANY SHALL MAIL A NOTICE TO EACH HOLDER STATING: (I)
THAT THE CHANGE OF CONTROL OFFER IS BEING MADE PURSUANT TO THIS SECTION 4.15 AND
THAT ALL NOTES TENDERED SHALL BE ACCEPTED FOR PAYMENT; (II) THE PURCHASE PRICE
AND THE PURCHASE DATE, WHICH SHALL BE NO EARLIER THAN 30 DAYS AND NO LATER THAN
60 DAYS FROM THE DATE SUCH NOTICE IS MAILED (THE "CHANGE OF CONTROL PAYMENT
DATE"); (III) THAT ANY NOTE NOT TENDERED SHALL CONTINUE TO ACCRUE INTEREST; (IV)
THAT, UNLESS THE COMPANY DEFAULTS IN THE PAYMENT OF THE CHANGE OF CONTROL
PAYMENT, ALL NOTES ACCEPTED FOR PAYMENT PURSUANT TO THE CHANGE OF CONTROL OFFER
SHALL CEASE TO ACCRUE INTEREST AFTER THE CHANGE OF CONTROL PAYMENT DATE; (V)
THAT HOLDERS ELECTING TO HAVE ANY NOTES PURCHASED PURSUANT TO A CHANGE OF
CONTROL OFFER SHALL BE REQUIRED TO SURRENDER THE NOTES, WITH THE FORM ENTITLED
"OPTION OF HOLDER TO ELECT PURCHASE" ON THE REVERSE OF THE NOTES COMPLETED, TO
THE PAYING AGENT AT THE ADDRESS SPECIFIED IN THE NOTICE PRIOR TO THE CLOSE OF
BUSINESS ON THE THIRD BUSINESS DAY PRECEDING THE CHANGE OF CONTROL PAYMENT DATE;
(VI) THAT HOLDERS SHALL BE ENTITLED TO WITHDRAW THEIR ELECTION IF THE PAYING
AGENT RECEIVES, NOT LATER THAN THE CLOSE OF BUSINESS ON THE SECOND BUSINESS DAY
PRECEDING THE CHANGE OF CONTROL PAYMENT DATE, A TELEGRAM, TELEX, FACSIMILE
TRANSMISSION OR LETTER SETTING FORTH THE NAME OF THE HOLDER, THE PRINCIPAL
AMOUNT OF NOTES DELIVERED FOR PURCHASE, AND A STATEMENT THAT SUCH HOLDER IS
WITHDRAWING HIS ELECTION TO HAVE THE NOTES PURCHASED; AND (VII) THAT HOLDERS
WHOSE NOTES ARE BEING PURCHASED ONLY IN PART SHALL BE ISSUED NEW NOTES EQUAL IN
PRINCIPAL AMOUNT TO THE UNPURCHASED PORTION OF THE NOTES SURRENDERED, WHICH
UNPURCHASED PORTION MUST BE EQUAL TO $1,000 IN PRINCIPAL AMOUNT OR AN INTEGRAL
MULTIPLE THEREOF. THE COMPANY SHALL COMPLY WITH THE REQUIREMENTS OF RULE 14E-1
UNDER THE EXCHANGE ACT AND ANY OTHER SECURITIES LAWS AND REGULATIONS THEREUNDER
TO THE EXTENT SUCH LAWS AND REGULATIONS ARE APPLICABLE IN CONNECTION WITH THE
REPURCHASE OF THE NOTES AS A RESULT OF A CHANGE OF CONTROL.
(B) ON THE CHANGE OF CONTROL PAYMENT DATE, THE COMPANY SHALL, TO THE
EXTENT LAWFUL, (I) ACCEPT FOR PAYMENT ALL NOTES OR PORTIONS THEREOF PROPERLY
TENDERED PURSUANT TO THE CHANGE OF CONTROL OFFER, (II) DEPOSIT WITH THE PAYING
AGENT AN AMOUNT EQUAL TO THE CHANGE OF CONTROL PAYMENT IN RESPECT OF ALL NOTES
OR PORTIONS THEREOF SO TENDERED AND (III) DELIVER OR CAUSE TO BE
60
DELIVERED TO THE TRUSTEE THE NOTES SO ACCEPTED TOGETHER WITH AN OFFICERS'
CERTIFICATE STATING THE AGGREGATE PRINCIPAL AMOUNT OF NOTES BEING PURCHASED BY
THE COMPANY. THE PAYING AGENT SHALL PROMPTLY MAIL TO EACH HOLDER OF NOTES SO
TENDERED PAYMENT IN AN AMOUNT EQUAL TO THE PURCHASE PRICE FOR THE NOTES, AND THE
TRUSTEE SHALL PROMPTLY AUTHENTICATE AND MAIL (OR CAUSE TO BE TRANSFERRED BY BOOK
ENTRY) TO EACH HOLDER A NEW NOTE EQUAL IN PRINCIPAL AMOUNT TO ANY UNPURCHASED
PORTION OF THE NOTES SURRENDERED BY SUCH HOLDER, IF ANY; PROVIDED, THAT EACH
SUCH NEW NOTE SHALL BE IN A PRINCIPAL AMOUNT OF $1,000 OR AN INTEGRAL MULTIPLE
THEREOF.
(C) PRIOR TO COMPLYING WITH ANY OF THE PROVISIONS OF THIS SECTION
4.15, BUT IN ANY EVENT WITHIN 90 DAYS FOLLOWING A CHANGE OF CONTROL, THE COMPANY
SHALL EITHER REPAY ALL OUTSTANDING SENIOR DEBT OR OBTAIN THE REQUISITE CONSENTS,
IF ANY, UNDER ALL AGREEMENTS GOVERNING OUTSTANDING SENIOR DEBT TO PERMIT THE
REPURCHASE OF NOTES REQUIRED BY THIS COVENANT. IF THE COMPANY DOES NOT OBTAIN
SUCH CONSENTS OR REPAY SUCH BORROWINGS, IT SHALL BE PROHIBITED FROM REPURCHASING
THE NOTES. THE COMPANY SHALL PUBLICLY ANNOUNCE THE RESULTS OF THE CHANGE OF
CONTROL OFFER ON OR AS SOON AS PRACTICABLE AFTER THE CHANGE OF CONTROL PAYMENT
DATE.
(D) THE PROVISIONS DESCRIBED ABOVE THAT REQUIRE THE COMPANY TO MAKE A
CHANGE OF CONTROL OFFER FOLLOWING A CHANGE OF CONTROL SHALL BE APPLICABLE
REGARDLESS OF WHETHER ANY OTHER PROVISIONS OF THIS INDENTURE ARE APPLICABLE.
EXCEPT AS DESCRIBED ABOVE WITH RESPECT TO A CHANGE OF CONTROL, THIS INDENTURE
DOES NOT CONTAIN PROVISIONS THAT PERMIT THE HOLDERS OF THE NOTES TO REQUIRE THAT
THE COMPANY REPURCHASE OR REDEEM THE NOTES IN THE EVENT OF A TAKEOVER,
RECAPITALIZATION OR SIMILAR TRANSACTION.
(E) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 4.15,
THE COMPANY SHALL NOT BE REQUIRED TO MAKE A CHANGE OF CONTROL OFFER UPON A
CHANGE OF CONTROL IF A THIRD PARTY MAKES THE CHANGE OF CONTROL OFFER IN THE
MANNER, AT THE TIMES AND OTHERWISE IN COMPLIANCE WITH THE REQUIREMENTS SET FORTH
IN THIS SECTION 4.15 AND SECTION 3.09 HEREOF AND ALL OTHER PROVISIONS APPLICABLE
TO A CHANGE OF CONTROL OFFER MADE BY THE COMPANY AND PURCHASES ALL NOTES VALIDLY
TENDERED AND NOT WITHDRAWN UNDER SUCH CHANGE OF CONTROL OFFER.
SECTION 4.16. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
THE BOARD OF DIRECTORS MAY DESIGNATE ANY RESTRICTED SUBSIDIARY TO BE
AN UNRESTRICTED SUBSIDIARY IF THAT DESIGNATION WOULD NOT CAUSE A DEFAULT. IF A
RESTRICTED SUBSIDIARY IS DESIGNATED AS AN UNRESTRICTED SUBSIDIARY, THE AGGREGATE
FAIR MARKET VALUE OF ALL OUTSTANDING INVESTMENTS OWNED BY THE COMPANY AND ITS
RESTRICTED SUBSIDIARIES IN THE SUBSIDIARY SO DESIGNATED SHALL BE DEEMED TO BE AN
INVESTMENT MADE AS OF THE TIME OF SUCH DESIGNATION AND SHALL EITHER REDUCE THE
AMOUNT AVAILABLE FOR RESTRICTED PAYMENTS UNDER THE FIRST PARAGRAPH OF SECTION
4.07 HEREOF OR REDUCE THE AMOUNT AVAILABLE FOR FUTURE INVESTMENTS UNDER ONE OR
MORE CLAUSES OF THE DEFINITION OF PERMITTED INVESTMENTS, AS THE COMPANY SHALL
DETERMINE. THAT DESIGNATION SHALL ONLY BE PERMITTED IF SUCH INVESTMENT WOULD BE
PERMITTED AT THAT TIME AND IF SUCH RESTRICTED SUBSIDIARY OTHERWISE MEETS THE
DEFINITION OF AN UNRESTRICTED SUBSIDIARY. THE BOARD OF DIRECTORS MAY REDESIGNATE
ANY UNRESTRICTED SUBSIDIARY TO BE A RESTRICTED SUBSIDIARY IF THE REDESIGNATION
WOULD NOT CAUSE A DEFAULT.
SECTION 4.17. LIMITATION ON FOREIGN INDEBTEDNESS.
THE COMPANY SHALL NOT PERMIT ANY RESTRICTED SUBSIDIARY OF THE COMPANY
THAT IS NOT A SUBSIDIARY GUARANTOR TO, DIRECTLY OR INDIRECTLY, INCUR ANY
INDEBTEDNESS (INCLUDING ACQUIRED INDEBTEDNESS) OTHER THAN INDEBTEDNESS INCURRED
PURSUANT TO CLAUSE (I) OR (II) OF SECTION 4.09 UNLESS, (I) AFTER GIVING EFFECT
TO THE INCURRENCE OF SUCH INDEBTEDNESS AND THE RECEIPT
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OF THE APPLICATION OF THE PROCEEDS THEREOF; (A) IF, AS A RESULT OF THE
INCURRENCE OF SUCH INDEBTEDNESS, SUCH RESTRICTED SUBSIDIARY SHALL BECOME SUBJECT
TO ANY RESTRICTION OR LIMITATION ON THE PAYMENT OF DIVIDENDS OR THE MAKING OF
OTHER DISTRIBUTIONS, (1) THE FIXED CHARGE COVERAGE RATIO OF RESTRICTED
SUBSIDIARIES THAT ARE NOT SUBSIDIARY GUARANTORS (DETERMINED ON A PRO FORMA BASIS
FOR THE LAST FOUR FISCAL QUARTERS FOR WHICH FINANCIAL STATEMENTS ARE AVAILABLE
AT THE DATE OF DETERMINATION) IS GREATER THAN 2.5 TO 1; AND (2) THE COMPANY'S
FIXED CHARGE COVERAGE RATIO (DETERMINED ON A PRO FORMA BASIS FOR THE LAST FOUR
FISCAL QUARTERS OF THE COMPANY FOR WHICH FINANCIAL STATEMENTS ARE AVAILABLE AT
THE DATE OF DETERMINATION) IS GREATER THAN 2.0 TO 1; AND (B) IN ANY OTHER CASE,
THE COMPANY'S FIXED CHARGE COVERAGE RATIO (DETERMINED ON A PRO FORMA BASIS FOR
THE LAST FOUR FISCAL QUARTERS OF THE COMPANY FOR WHICH FINANCIAL STATEMENTS ARE
AVAILABLE AT THE DATE OF DETERMINATION) IS GREATER THAN 2.0 TO 1; AND (II) NO
DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING AT THE TIME OR
AS A CONSEQUENCE OF THE INCURRENCE OF SUCH INDEBTEDNESS.
THIS COVENANT SHALL NOT PROHIBIT THE INCURRENCE OF INDEBTEDNESS BY A
RESTRICTED SUBSIDIARY THAT IS NOT A SUBSIDIARY GUARANTOR IN AN AMOUNT AT ANY ONE
TIME OUTSTANDING THAT DOES NOT EXCEED $5.0 MILLION; PROVIDED, THAT NONE OF THE
COMPANY OR ANY SUBSIDIARY GUARANTOR SHALL BE OBLIGATED, DIRECTLY OR INDIRECTLY,
TO PAY PRINCIPAL, PREMIUM, INTEREST OR OTHER AMOUNTS THEREON OR IN RESPECT
THEREOF (INCLUDING BY WAY OF NET WORTH REQUIREMENTS, EQUITY KEEP XXXXX OR THE
LIKE). IN THE EVENT THAT ANY INDEBTEDNESS INCURRED PURSUANT TO CLAUSE (1)(B) OF
THE FIRST PARAGRAPH OF THIS COVENANT IS PROPOSED TO BE AMENDED, MODIFIED OR
OTHERWISE SUPPLEMENTED SUCH THAT THE PAYMENT OF DIVIDENDS OR THE MAKING OF OTHER
DISTRIBUTIONS BECOMES SUBJECT IN ANY MANNER TO ANY RESTRICTION OR LIMITATION,
THE COMPANY SHALL NOT PERMIT THE RESTRICTED SUBSIDIARY TO SO AMEND, MODIFY OR
SUPPLEMENT SUCH INDEBTEDNESS UNLESS SUCH INDEBTEDNESS COULD BE INCURRED PURSUANT
TO THE TERMS OF CLAUSE (1)(A) OF THE FOREGOING PARAGRAPH.
ALL CALCULATIONS REQUIRED UNDER THE PRIOR TWO PARAGRAPHS HEREOF SHALL
BE MADE IN A MANNER CONSISTENT WITH THE CALCULATIONS REQUIRED UNDER SECTION
4.09.
SECTION 4.18. PAYMENTS FOR CONSENT.
THE COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS SUBSIDIARIES
TO, DIRECTLY OR INDIRECTLY, PAY OR CAUSE TO BE PAID ANY CONSIDERATION TO OR FOR
THE BENEFIT OF ANY HOLDER OF NOTES FOR OR AS AN INDUCEMENT TO ANY CONSENT,
WAIVER OR AMENDMENT OF ANY OF THE TERMS OR PROVISIONS OF THE INDENTURE OR THE
NOTES, UNLESS SUCH CONSIDERATION IS OFFERED TO BE PAID AND IS PAID TO ALL
HOLDERS OF THE NOTES THAT CONSENT, WAIVE OR AGREE TO AMEND IN THE TIME FRAME SET
FORTH IN THE SOLICITATION DOCUMENTS RELATING TO SUCH CONSENT, WAIVER OR
AGREEMENT.
SECTION 4.19. ADDITIONAL SUBSIDIARY GUARANTIES.
IF THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES SHALL ACQUIRE OR
CREATE ANOTHER DOMESTIC RESTRICTED SUBSIDIARY AFTER THE DATE OF THIS INDENTURE
AND THE NEWLY ACQUIRED OR CREATED DOMESTIC RESTRICTED SUBSIDIARY BECOMES A
GUARANTOR OF ANY CREDIT FACILITY, THEN THAT NEWLY ACQUIRED OR CREATED DOMESTIC
RESTRICTED SUBSIDIARY MUST BECOME A SUBSIDIARY GUARANTOR AND EXECUTE A
SUPPLEMENTAL INDENTURE AND DELIVER AN OPINION OF COUNSEL TO THE TRUSTEE WITHIN
10 BUSINESS DAYS OF THE DATE ON WHICH IT BECAME A SUBSIDIARY GUARANTOR UNDER A
CREDIT FACILITY.
SECTION 4.20. LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS.
THE COMPANY SHALL NOT PERMIT ANY RESTRICTED SUBSIDIARY THAT IS NOT A
SUBSIDIARY
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GUARANTOR, DIRECTLY OR INDIRECTLY, TO GUARANTY OR PLEDGE ANY ASSETS TO SECURE
THE PAYMENT OF ANY OTHER INDEBTEDNESS OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR
(OTHER THAN SUCH RESTRICTED SUBSIDIARY) UNLESS IT SIMULTANEOUSLY EXECUTES AND
DELIVERS A SUPPLEMENTAL INDENTURE PROVIDING FOR THE GUARANTY OF THE PAYMENT OF
THE NOTES BY SUCH RESTRICTED SUBSIDIARY, WHICH SUBSIDIARY GUARANTY SHALL BE
SENIOR TO OR PARI PASSU WITH SUCH RESTRICTED SUBSIDIARY'S GUARANTY OF OR PLEDGE
TO SECURE SUCH OTHER INDEBTEDNESS. NOTWITHSTANDING THE FOREGOING, ANY SUCH
SUBSIDIARY GUARANTY BY A SUBSIDIARY OF THE NOTES SHALL PROVIDE BY ITS TERMS THAT
IT SHALL BE AUTOMATICALLY AND UNCONDITIONALLY RELEASED AND DISCHARGED UPON ANY
SALE, EXCHANGE OR TRANSFER, TO ANY PERSON NOT AN AFFILIATE OF THE COMPANY, OF
ALL OF THE COMPANY'S STOCK IN, OR ALL OR SUBSTANTIALLY ALL THE ASSETS OF, SUCH
SUBSIDIARY, WHICH SALE, EXCHANGE OR TRANSFER IS MADE IN COMPLIANCE WITH THE
APPLICABLE PROVISIONS OF THIS INDENTURE. THE FORM OF SUCH SUBSIDIARY GUARANTY IS
ATTACHED AS EXHIBIT E HERETO.
SECTION 4.21. NO SENIOR SUBORDINATED DEBT.
NOTWITHSTANDING THE PROVISIONS OF SECTION 4.09 HEREOF, (I) THE
COMPANY SHALL NOT INCUR, CREATE, ISSUE, ASSUME, GUARANTEE OR OTHERWISE BECOME
LIABLE FOR ANY INDEBTEDNESS THAT IS SUBORDINATE OR JUNIOR IN RIGHT OF PAYMENT TO
ANY SENIOR DEBT OF THE COMPANY AND SENIOR IN ANY RESPECT IN RIGHT OF PAYMENT TO
THE NOTES, AND (II) NO SUBSIDIARY GUARANTOR SHALL INCUR, CREATE, ISSUE, ASSUME,
GUARANTEE OR OTHERWISE BECOME LIABLE FOR ANY INDEBTEDNESS THAT IS SUBORDINATED
OR JUNIOR IN RIGHT OF PAYMENT TO THE SENIOR DEBT OF SUCH SUBSIDIARY GUARANTOR
AND SENIOR IN ANY RESPECT IN RIGHT OF PAYMENT TO SUCH SUBSIDIARY GUARANTOR'S
SUBSIDIARY GUARANTY.
ARTICLE 5 SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
THE COMPANY SHALL NOT, DIRECTLY OR INDIRECTLY, CONSOLIDATE OR MERGE
WITH OR INTO ANOTHER PERSON (WHETHER OR NOT THE COMPANY IS THE SURVIVING
CORPORATION), OR SELL, ASSIGN, TRANSFER, CONVEY OR OTHERWISE DISPOSE OF ALL OR
SUBSTANTIALLY ALL OF THE PROPERTIES OR ASSETS OF THE COMPANY AND ITS RESTRICTED
SUBSIDIARIES TAKEN AS A WHOLE, IN ONE OR MORE RELATED TRANSACTIONS, TO ANOTHER
PERSON UNLESS (I) EITHER (A) THE COMPANY IS THE SURVIVING CORPORATION; OR (B)
THE PERSON FORMED BY OR SURVIVING ANY SUCH CONSOLIDATION OR MERGER (IF OTHER
THAN THE COMPANY) OR TO WHICH SUCH SALE, ASSIGNMENT, TRANSFER, CONVEYANCE OR
OTHER DISPOSITION SHALL HAVE BEEN MADE IS A CORPORATION, PARTNERSHIP, LIMITED
LIABILITY COMPANY OR TRUST ORGANIZED OR EXISTING UNDER THE LAWS OF THE UNITED
STATES, ANY STATE THEREOF OR THE DISTRICT OF COLUMBIA, (II) THE PERSON FORMED BY
OR SURVIVING ANY SUCH CONSOLIDATION OR MERGER (IF OTHER THAN THE COMPANY) OR THE
PERSON TO WHICH SUCH SALE, ASSIGNMENT, TRANSFER, CONVEYANCE OR OTHER DISPOSITION
SHALL HAVE BEEN MADE ASSUMES ALL THE OBLIGATIONS OF THE COMPANY UNDER THE
REGISTRATION RIGHTS AGREEMENT, THE NOTES AND THIS INDENTURE PURSUANT TO
AGREEMENTS REASONABLY SATISFACTORY TO THE TRUSTEE, (III) IMMEDIATELY AFTER SUCH
TRANSACTION, NO DEFAULT OR EVENT OF DEFAULT EXISTS AND (IV) THE COMPANY OR THE
PERSON FORMED BY OR SURVIVING ANY SUCH CONSOLIDATION OR MERGER (IF OTHER THAN
THE COMPANY), OR TO WHICH SUCH SALE, ASSIGNMENT, TRANSFER, CONVEYANCE OR OTHER
DISPOSITION SHALL HAVE BEEN MADE SHALL, ON THE DATE OF SUCH TRANSACTION AFTER
GIVING PRO FORMA EFFECT THERETO AND ANY RELATED FINANCING TRANSACTIONS AS IF THE
SAME HAD OCCURRED AT THE BEGINNING OF THE APPLICABLE FOUR-QUARTER PERIOD, BE
PERMITTED TO INCUR AT LEAST $1.00 OF ADDITIONAL INDEBTEDNESS PURSUANT TO THE
FIXED CHARGE COVERAGE RATIO TEST SET FORTH IN THE FIRST PARAGRAPH OF SECTION
4.09. IN ADDITION, THE COMPANY
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SHALL NOT, DIRECTLY OR INDIRECTLY, LEASE ALL OR SUBSTANTIALLY ALL OF ITS
PROPERTIES OR ASSETS, IN ONE OR MORE RELATED TRANSACTIONS, TO ANY OTHER PERSON.
THE PROVISIONS OF THIS SECTION 5.01 SHALL NOT BE APPLICABLE TO A SALE,
ASSIGNMENT, TRANSFER, CONVEYANCE OR OTHER DISPOSITION OF ASSETS BETWEEN OR AMONG
THE COMPANY AND ANY OF THE SUBSIDIARY GUARANTORS.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
UPON ANY CONSOLIDATION OR MERGER, OR ANY SALE, ASSIGNMENT,
TRANSFER, LEASE, CONVEYANCE OR OTHER DISPOSITION OF ALL OR SUBSTANTIALLY ALL
OF THE ASSETS OF THE COMPANY IN ACCORDANCE WITH SECTION 5.01 HEREOF, THE
SUCCESSOR CORPORATION FORMED BY SUCH CONSOLIDATION OR INTO OR WITH WHICH THE
COMPANY IS MERGED OR TO WHICH SUCH SALE, ASSIGNMENT, TRANSFER, LEASE,
CONVEYANCE OR OTHER DISPOSITION IS MADE SHALL SUCCEED TO, AND BE SUBSTITUTED
FOR (SO THAT FROM AND AFTER THE DATE OF SUCH CONSOLIDATION, MERGER, SALE,
LEASE, CONVEYANCE OR OTHER DISPOSITION, THE PROVISIONS OF THIS INDENTURE
REFERRING TO THE "COMPANY" SHALL REFER INSTEAD TO THE SUCCESSOR CORPORATION
AND NOT TO THE COMPANY), AND MAY EXERCISE EVERY RIGHT AND POWER OF THE
COMPANY UNDER THIS INDENTURE WITH THE SAME EFFECT AS IF SUCH SUCCESSOR PERSON
HAD BEEN NAMED AS THE COMPANY HEREIN; PROVIDED, HOWEVER, THAT THE PREDECESSOR
COMPANY SHALL NOT BE RELIEVED FROM THE OBLIGATION TO PAY THE PRINCIPAL OF AND
INTEREST ON THE NOTES EXCEPT IN THE CASE OF A SALE OF ALL OF THE COMPANY'S
ASSETS THAT MEETS THE REQUIREMENTS OF SECTION 5.01 HEREOF.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
AN "EVENT OF DEFAULT" OCCURS IF:
(A) THE COMPANY DEFAULTS FOR 30 DAYS IN THE PAYMENT WHEN DUE OF INTEREST
ON, OR LIQUIDATED DAMAGES, IF ANY, WITH RESPECT TO, THE NOTES WHETHER
OR NOT PROHIBITED BY THE SUBORDINATION PROVISIONS HEREOF;
(B) THE COMPANY DEFAULTS IN THE PAYMENT WHEN DUE OF THE PRINCIPAL OF, OR
PREMIUM, IF ANY, ON THE NOTES, WHETHER OR NOT PROHIBITED BY THE
SUBORDINATION PROVISIONS HEREOF;
(C) THE COMPANY FAILS OR ANY OF ITS RESTRICTED SUBSIDIARIES FAIL TO
COMPLY WITH THE PROVISIONS DESCRIBED IN SECTION 5.01 HEREOF;
(D) THE COMPANY FAILS OR ANY OF ITS RESTRICTED SUBSIDIARIES FAIL TO COMPLY
WITH ANY OF THE OTHER AGREEMENTS IN THIS INDENTURE FOR 60 DAYS AFTER
NOTICE FROM THE TRUSTEE OR HOLDERS OF AT LEAST 25% OF THE OUTSTANDING
PRINCIPAL BALANCE OF THE NOTES (INCLUDING ADDITIONAL NOTES, IF ANY)
THEN OUTSTANDING VOTING AS A SINGLE CLASS;
(E) A DEFAULT OCCURS UNDER ANY MORTGAGE, INDENTURE OR INSTRUMENT
UNDER WHICH THERE IS ISSUED AND OUTSTANDING ANY INDEBTEDNESS FOR
MONEY BORROWED BY THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES
(OR THE PAYMENT OF WHICH IS GUARANTIED BY THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES) WHETHER SUCH INDEBTEDNESS OR GUARANTY NOW
EXISTS, OR IS CREATED AFTER THE DATE OF THE INDENTURE, IF THAT
DEFAULT (I) IS CAUSED BY A FAILURE TO PAY PRINCIPAL OF, OR INTEREST
OR PREMIUM, IF ANY, ON SUCH INDEBTEDNESS PRIOR TO THE EXPIRATION
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OF THE GRACE PERIOD PROVIDED IN SUCH INDEBTEDNESS ON THE DATE OF SUCH
DEFAULT (A "PAYMENT DEFAULT") (II) RESULTS IN THE ACCELERATION OF SUCH
INDEBTEDNESS PRIOR TO ITS EXPRESS MATURITY, AND, IN EACH CASE, THE
PRINCIPAL AMOUNT OF ANY SUCH INDEBTEDNESS, TOGETHER WITH THE PRINCIPAL
AMOUNT OF ANY OTHER SUCH INDEBTEDNESS UNDER WHICH THERE HAS BEEN A
PAYMENT DEFAULT OR THE MATURITY OF WHICH HAS BEEN SO ACCELERATED,
AGGREGATES $10.0 MILLION OR MORE;
(F) THE COMPANY FAILS OR ANY OF ITS RESTRICTED SUBSIDIARIES FAIL TO PAY
FINAL JUDGMENTS AGGREGATING IN EXCESS OF $10.0 MILLION, WHICH JUDGMENTS
ARE NOT PAID, VACATED, DISCHARGED, STAYED OR NON-APPEALABLE FOR A
PERIOD OF 90 DAYS, AND IN THE EVENT SUCH JUDGMENT IS COVERED BY
INSURANCE, AN ENFORCEMENT PROCEEDING HAS BEEN COMMENCED BY ANY CREDITOR
UPON SUCH JUDGMENT OR DECREE WHICH IS NOT PROMPTLY STAYED;
(G) EXCEPT AS PERMITTED BY THIS INDENTURE, ANY SUBSIDIARY GUARANTY IS HELD
IN ANY JUDICIAL PROCEEDING TO BE UNENFORCEABLE OR INVALID OR CEASES FOR
ANY REASON TO BE IN FULL FORCE AND EFFECT OR ANY SUBSIDIARY GUARANTOR,
OR ANY PERSON ACTING ON BEHALF OF ANY SUBSIDIARY GUARANTOR, DENIES OR
DISAFFIRMS ITS OBLIGATIONS UNDER ITS SUBSIDIARY GUARANTY;
(H) THE COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES OR ANY GROUP OF
SUBSIDIARIES THAT, INDIVIDUALLY OR IN THE AGGREGATE, WOULD CONSTITUTE A
SIGNIFICANT SUBSIDIARY PURSUANT TO OR WITHIN THE MEANING OF BANKRUPTCY
LAW: (I) COMMENCES A VOLUNTARY CASE, (II) CONSENTS TO THE ENTRY OF AN
ORDER FOR RELIEF AGAINST IT IN AN INVOLUNTARY CASE, (III) CONSENTS TO
THE APPOINTMENT OF A CUSTODIAN OF IT OR FOR ALL OR SUBSTANTIALLY ALL OF
ITS PROPERTY, (IV) MAKES A GENERAL ASSIGNMENT FOR THE BENEFIT OF ITS
CREDITORS, OR (V) GENERALLY IS NOT PAYING ITS DEBTS AS THEY BECOME DUE;
OR
(I) A COURT OF COMPETENT JURISDICTION ENTERS AN ORDER OR DECREE UNDER
ANY BANKRUPTCY LAW THAT:(I) IS FOR RELIEF AGAINST THE COMPANY OR
ANY OF ITS SIGNIFICANT SUBSIDIARIES OR ANY GROUP OF SUBSIDIARIES
THAT, TAKEN AS A WHOLE, WOULD CONSTITUTE A SIGNIFICANT SUBSIDIARY
IN AN INVOLUNTARY CASE; (II) APPOINTS A CUSTODIAN OF THE COMPANY
OR ANY OF ITS SIGNIFICANT SUBSIDIARIES OR ANY GROUP OF
SUBSIDIARIES THAT, TAKEN AS A WHOLE, WOULD CONSTITUTE A
SIGNIFICANT SUBSIDIARY OR FOR ALL OR SUBSTANTIALLY ALL OF THE
PROPERTY OF THE COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES OR ANY
GROUP OF SUBSIDIARIES THAT, TAKEN AS A WHOLE, WOULD CONSTITUTE A
SIGNIFICANT SUBSIDIARY; OR (III) ORDERS THE LIQUIDATION OF THE
COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES OR ANY GROUP OF
SUBSIDIARIES THAT, TAKEN AS A WHOLE, WOULD CONSTITUTE A SIGNIFICANT
SUBSIDIARY; AND THE ORDER OR DECREE REMAINS UNSTAYED AND IN EFFECT FOR
60 CONSECUTIVE DAYS.
SECTION 6.02. ACCELERATION.
IF ANY EVENT OF DEFAULT (OTHER THAN AN EVENT OF DEFAULT SPECIFIED IN
CLAUSE (H) OR (I) OF SECTION 6.01 HEREOF WITH RESPECT TO THE COMPANY, ANY
SUBSIDIARY THAT IS A SIGNIFICANT SUBSIDIARY OR ANY GROUP OF SUBSIDIARIES THAT,
TAKEN TOGETHER, WOULD CONSTITUTE A SIGNIFICANT SUBSIDIARY) 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 PAST DUE AND PAYABLE
IMMEDIATELY; PROVIDED, HOWEVER, THAT SO LONG AS ANY INDEBTEDNESS PERMITTED TO BE
INCURRED UNDER THIS INDENTURE AS PART OF THE CREDIT FACILITIES IS OUTSTANDING,
NO SUCH ACCELERATION SHALL BE EFFECTIVE UNTIL THE EARLIER OF (I) FIVE BUSINESS
DAYS AFTER THE GIVING OF WRITTEN NOTICE TO THE COMPANY AND THE ADMINISTRATIVE
AGENT UNDER THE CREDIT FACILITIES OF SUCH ACCELERATION OR (II) ACCELERATION OF
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ANY SUCH INDEBTEDNESS UNDER THE CREDIT FACILITIES. NOTWITHSTANDING THE
FOREGOING, IF AN EVENT OF DEFAULT SPECIFIED IN CLAUSE (H) OR (I) OF SECTION 6.01
HEREOF OCCURS WITH RESPECT TO THE COMPANY, ANY SUBSIDIARY THAT IS A SIGNIFICANT
SUBSIDIARY OR ANY GROUP OF SUBSIDIARIES THAT, TAKEN TOGETHER, WOULD CONSTITUTE A
SIGNIFICANT SUBSIDIARY, ALL OUTSTANDING NOTES SHALL BE DUE AND PAYABLE
IMMEDIATELY WITHOUT FURTHER ACTION OR NOTICE. THE HOLDERS OF A MAJORITY IN
AGGREGATE PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES BY WRITTEN NOTICE TO
THE TRUSTEE MAY ON BEHALF OF ALL OF THE HOLDERS RESCIND AN ACCELERATION AND ITS
CONSEQUENCES IF THE RESCISSION WOULD NOT CONFLICT WITH ANY JUDGMENT OR DECREE
AND IF ALL EXISTING EVENTS OF DEFAULT (EXCEPT NONPAYMENT OF PRINCIPAL, INTEREST
OR PREMIUM THAT HAS BECOME DUE SOLELY BECAUSE OF THE ACCELERATION) HAVE BEEN
CURED OR WAIVED.
SECTION 6.03. OTHER REMEDIES.
IF AN EVENT OF DEFAULT OCCURS AND IS CONTINUING, THE TRUSTEE MAY
PURSUE ANY AVAILABLE REMEDY TO COLLECT THE PAYMENT OF PRINCIPAL, PREMIUM, IF
ANY, AND 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 HOLDER OF A NOTE IN EXERCISING ANY RIGHT OR
REMEDY ACCRUING UPON AN EVENT OF DEFAULT SHALL NOT IMPAIR THE RIGHT OR REMEDY OR
CONSTITUTE A WAIVER OF OR ACQUIESCENCE IN THE EVENT OF DEFAULT. ALL REMEDIES ARE
CUMULATIVE TO THE EXTENT PERMITTED BY LAW.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
HOLDERS OF NOT LESS THAN A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF
THE THEN OUTSTANDING NOTES BY NOTICE TO THE TRUSTEE MAY ON BEHALF OF THE HOLDERS
OF ALL OF THE NOTES WAIVE AN EXISTING DEFAULT OR EVENT OF DEFAULT AND ITS
CONSEQUENCES HEREUNDER, EXCEPT A CONTINUING DEFAULT OR EVENT OF DEFAULT IN THE
PAYMENT OF THE PRINCIPAL OF, PREMIUM AND LIQUIDATED DAMAGES, IF ANY, OR INTEREST
ON, THE NOTES (INCLUDING IN CONNECTION WITH AN OFFER TO PURCHASE) (PROVIDED,
HOWEVER, THAT THE HOLDERS OF A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF THE
THEN OUTSTANDING NOTES MAY RESCIND AN ACCELERATION AND ITS CONSEQUENCES,
INCLUDING ANY RELATED PAYMENT DEFAULT THAT RESULTED FROM SUCH ACCELERATION).
UPON ANY SUCH WAIVER, SUCH DEFAULT SHALL CEASE TO EXIST, AND ANY EVENT OF
DEFAULT ARISING THEREFROM SHALL BE DEEMED TO HAVE BEEN CURED FOR EVERY PURPOSE
OF THIS INDENTURE; BUT NO SUCH WAIVER SHALL EXTEND TO ANY SUBSEQUENT OR OTHER
DEFAULT OR IMPAIR ANY RIGHT CONSEQUENT THEREON.
SECTION 6.05. CONTROL BY MAJORITY.
HOLDERS OF A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING
NOTES MAY DIRECT THE TIME, METHOD AND PLACE OF CONDUCTING ANY PROCEEDING FOR
EXERCISING ANY REMEDY AVAILABLE TO THE TRUSTEE OR EXERCISING ANY TRUST OR POWER
CONFERRED ON IT. HOWEVER, THE TRUSTEE MAY REFUSE TO FOLLOW ANY DIRECTION THAT
CONFLICTS WITH LAW OR THIS INDENTURE THAT THE TRUSTEE DETERMINES MAY BE UNDULY
PREJUDICIAL TO THE RIGHTS OF OTHER HOLDERS OF NOTES OR THAT MAY INVOLVE THE
TRUSTEE IN PERSONAL LIABILITY.
SECTION 6.06. LIMITATION ON SUITS.
A HOLDER OF A NOTE MAY PURSUE A REMEDY WITH RESPECT TO THIS INDENTURE
OR THE NOTES ONLY IF:
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(A) THE HOLDER OF A NOTE GIVES TO THE TRUSTEE WRITTEN NOTICE OF A
CONTINUING EVENT OF DEFAULT;
(B) THE HOLDERS OF AT LEAST 25% IN PRINCIPAL AMOUNT OF THE THEN
OUTSTANDING NOTES MAKE A WRITTEN REQUEST TO THE TRUSTEE TO PURSUE THE REMEDY;
(C) SUCH HOLDER OF A NOTE OR HOLDERS OF NOTES OFFER AND, IF
REQUESTED, PROVIDE TO THE TRUSTEE INDEMNITY SATISFACTORY TO THE TRUSTEE AGAINST
ANY LOSS, LIABILITY OR EXPENSE;
(D) THE TRUSTEE DOES NOT COMPLY WITH THE REQUEST WITHIN 60 DAYS AFTER
RECEIPT OF THE REQUEST AND THE OFFER AND, IF REQUESTED, THE PROVISION OF
INDEMNITY; AND
(E) DURING SUCH 60-DAY PERIOD THE HOLDERS OF A MAJORITY IN PRINCIPAL
AMOUNT OF THE THEN OUTSTANDING NOTES DO NOT GIVE THE TRUSTEE A DIRECTION
INCONSISTENT WITH THE REQUEST.
A HOLDER OF A NOTE MAY NOT USE THIS INDENTURE TO PREJUDICE THE RIGHTS
OF ANOTHER HOLDER OF A NOTE OR TO OBTAIN A PREFERENCE OR PRIORITY OVER ANOTHER
HOLDER OF A NOTE.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS INDENTURE, THE RIGHT OF
ANY HOLDER OF A NOTE TO RECEIVE PAYMENT OF PRINCIPAL, PREMIUM AND LIQUIDATED
DAMAGES, IF ANY, AND INTEREST ON THE NOTE, ON OR AFTER THE RESPECTIVE DUE DATES
EXPRESSED IN THE NOTE (INCLUDING IN CONNECTION WITH AN OFFER TO PURCHASE), OR TO
BRING SUIT FOR THE ENFORCEMENT OF ANY SUCH PAYMENT ON OR AFTER SUCH RESPECTIVE
DATES, SHALL NOT BE IMPAIRED OR AFFECTED WITHOUT THE CONSENT OF SUCH HOLDER.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
IF AN EVENT OF DEFAULT SPECIFIED IN SECTION 6.01(A) OR (B) OCCURS AND
IS CONTINUING, THE TRUSTEE IS AUTHORIZED TO RECOVER JUDGMENT IN ITS OWN NAME AND
AS TRUSTEE OF AN EXPRESS TRUST AGAINST THE COMPANY FOR THE WHOLE AMOUNT OF
PRINCIPAL OF, PREMIUM AND LIQUIDATED DAMAGES, IF ANY, AND INTEREST REMAINING
UNPAID ON THE NOTES AND INTEREST ON OVERDUE PRINCIPAL AND, TO THE EXTENT LAWFUL,
INTEREST AND SUCH FURTHER AMOUNT AS SHALL BE SUFFICIENT TO COVER THE COSTS AND
EXPENSES OF COLLECTION, INCLUDING THE REASONABLE COMPENSATION, EXPENSES,
DISBURSEMENTS AND ADVANCES OF THE TRUSTEE, ITS AGENTS AND COUNSEL.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
THE TRUSTEE IS AUTHORIZED TO FILE SUCH PROOFS OF CLAIM AND OTHER
PAPERS OR DOCUMENTS AS MAY BE NECESSARY OR ADVISABLE IN ORDER TO HAVE THE CLAIMS
OF THE TRUSTEE (INCLUDING ANY CLAIM FOR THE REASONABLE COMPENSATION, EXPENSES,
DISBURSEMENTS AND ADVANCES OF THE TRUSTEE, ITS AGENTS AND COUNSEL) AND THE
HOLDERS OF THE NOTES ALLOWED IN ANY JUDICIAL PROCEEDINGS RELATIVE TO THE COMPANY
(OR ANY OTHER OBLIGOR UPON THE NOTES), ITS CREDITORS OR ITS PROPERTY AND SHALL
BE ENTITLED AND EMPOWERED TO COLLECT, RECEIVE AND DISTRIBUTE ANY MONEY OR OTHER
PROPERTY PAYABLE OR DELIVERABLE ON ANY SUCH CLAIMS AND ANY CUSTODIAN IN ANY SUCH
JUDICIAL PROCEEDING IS HEREBY AUTHORIZED BY EACH HOLDER TO MAKE SUCH PAYMENTS TO
THE TRUSTEE, AND IN THE EVENT THAT THE TRUSTEE SHALL CONSENT TO THE MAKING OF
SUCH PAYMENTS DIRECTLY TO THE HOLDERS, TO PAY TO THE TRUSTEE ANY AMOUNT DUE TO
IT FOR THE REASONABLE COMPENSATION, EXPENSES, DISBURSEMENTS AND ADVANCES OF THE
TRUSTEE, ITS AGENTS AND COUNSEL, AND ANY OTHER AMOUNTS DUE THE TRUSTEE UNDER
SECTION 7.07 HEREOF. TO THE
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EXTENT THAT THE PAYMENT OF ANY SUCH COMPENSATION, EXPENSES, DISBURSEMENTS AND
ADVANCES OF THE TRUSTEE, ITS AGENTS AND COUNSEL, AND ANY OTHER AMOUNTS DUE THE
TRUSTEE UNDER SECTION 7.07 HEREOF OUT OF THE ESTATE IN ANY SUCH PROCEEDING,
SHALL BE DENIED FOR ANY REASON, PAYMENT OF THE SAME SHALL BE SECURED BY A LIEN
ON, AND SHALL BE PAID OUT OF, ANY AND ALL DISTRIBUTIONS, DIVIDENDS, MONEY,
SECURITIES AND OTHER PROPERTIES THAT THE HOLDERS MAY BE ENTITLED TO RECEIVE IN
SUCH PROCEEDING WHETHER IN LIQUIDATION OR UNDER ANY PLAN OF REORGAN IZATION OR
ARRANGEMENT OR OTHERWISE. NOTHING HEREIN CONTAINED SHALL BE DEEMED TO AUTHORIZE
THE TRUSTEE TO AUTHORIZE OR CONSENT TO OR ACCEPT OR ADOPT ON BEHALF OF ANY
HOLDER ANY PLAN OF REORGANIZATION, ARRANGEMENT, ADJUSTMENT OR COMPOSITION
AFFECTING THE NOTES OR THE RIGHTS OF ANY HOLDER, OR TO AUTHORIZE THE TRUSTEE TO
VOTE IN RESPECT OF THE CLAIM OF ANY HOLDER IN ANY SUCH PROCEEDING.
SECTION 6.10. PRIORITIES.
IF THE TRUSTEE COLLECTS ANY MONEY PURSUANT TO THIS ARTICLE, IT SHALL
PAY OUT THE MONEY IN THE FOLLOWING ORDER:
FIRST: TO THE TRUSTEE, ITS AGENTS AND ATTORNEYS FOR
AMOUNTS DUE UNDER SECTION 7.07 HEREOF, INCLUDING PAYMENT OF ALL
COMPENSATION, EXPENSE AND LIABILITIES INCURRED, AND ALL ADVANCES MADE,
BY THE TRUSTEE AND THE COSTS AND EXPENSES OF COLLECTION;
SECOND: SUBJECT TO THE SUBORDINATION PROVISIONS HEREOF, TO
HOLDERS OF NOTES FOR AMOUNTS DUE AND UNPAID ON THE NOTES FOR PRINCIPAL,
PREMIUM AND LIQUIDATED DAMAGES, 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 AND LIQUIDATED DAMAGES, IF ANY
AND INTEREST, RESPECTIVELY; AND
THIRD: TO THE COMPANY OR TO SUCH PARTY AS A COURT OF
COMPETENT JURISDICTION SHALL DIRECT.
THE TRUSTEE MAY FIX A RECORD DATE AND PAYMENT DATE FOR ANY PAYMENT TO
HOLDERS OF NOTES PURSUANT TO THIS SECTION 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
IN ANY SUIT FOR THE ENFORCEMENT OF ANY RIGHT OR REMEDY UNDER THIS
INDENTURE OR IN ANY SUIT AGAINST THE TRUSTEE FOR ANY ACTION TAKEN OR OMITTED BY
IT AS A TRUSTEE, A COURT IN ITS DISCRETION MAY REQUIRE THE FILING BY ANY PARTY
LITIGANT IN THE SUIT OF AN UNDERTAKING TO PAY THE COSTS OF THE SUIT, AND THE
COURT IN ITS DISCRETION MAY ASSESS REASONABLE COSTS, INCLUDING REASONABLE
ATTORNEYS' FEES, AGAINST ANY PARTY LITIGANT IN THE SUIT, HAVING DUE REGARD TO
THE MERITS AND GOOD FAITH OF THE CLAIMS OR DEFENSES MADE BY THE PARTY LITIGANT.
THIS SECTION DOES NOT APPLY TO A SUIT BY THE TRUSTEE, A SUIT BY A HOLDER OF A
NOTE PURSUANT TO SECTION 6.07 HEREOF, OR A SUIT BY HOLDERS OF MORE THAN 10% IN
PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
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(A) IF AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, THE
TRUSTEE SHALL EXERCISE SUCH OF THE RIGHTS AND POWERS VESTED IN IT BY THIS
INDENTURE, AND USE THE SAME DEGREE OF CARE AND SKILL IN ITS EXERCISE, AS A
PRUDENT PERSON WOULD EXERCISE OR USE UNDER THE CIRCUMSTANCES IN THE CONDUCT OF
SUCH PERSON'S OWN AFFAIRS.
(B) EXCEPT DURING THE CONTINUANCE OF AN EVENT OF DEFAULT:
(I) THE DUTIES OF THE TRUSTEE SHALL BE DETERMINED SOLELY BY THE
EXPRESS PROVISIONS OF THIS INDENTURE AND THE TRUSTEE NEED PERFORM ONLY THOSE
DUTIES THAT ARE SPECIFICALLY SET FORTH IN THIS INDENTURE AND NO OTHERS, AND NO
IMPLIED COVENANTS OR OBLIGATIONS SHALL BE READ INTO THIS INDENTURE AGAINST THE
TRUSTEE; AND
(II) IN THE ABSENCE OF BAD FAITH ON ITS PART, THE TRUSTEE MAY
CONCLUSIVELY RELY, AS TO THE TRUTH OF THE STATEMENTS AND THE CORRECTNESS OF THE
OPINIONS EXPRESSED THEREIN, UPON CERTIFICATES OR OPINIONS FURNISHED TO THE
TRUSTEE AND CONFORMING TO THE REQUIREMENTS OF THIS INDENTURE. HOWEVER, THE
TRUSTEE SHALL EXAMINE THE CERTIFICATES AND OPINIONS TO DETERMINE WHETHER OR NOT
THEY CONFORM TO THE REQUIREMENTS OF THIS INDENTURE.
(C) THE TRUSTEE MAY NOT BE RELIEVED FROM LIABILITIES FOR ITS OWN
NEGLIGENT ACTION, ITS OWN NEGLIGENT FAILURE TO ACT, OR ITS OWN WILLFUL
MISCONDUCT, EXCEPT THAT:
(I) THIS PARAGRAPH DOES NOT LIMIT THE EFFECT OF PARAGRAPH (B) OF
THIS SECTION;
(II) THE TRUSTEE SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT MADE
IN GOOD FAITH BY A RESPONSIBLE OFFICER, UNLESS IT IS PROVED THAT THE TRUSTEE WAS
NEGLIGENT IN ASCERTAINING THE PERTINENT FACTS; AND
(III) THE TRUSTEE SHALL NOT BE LIABLE WITH RESPECT TO ANY ACTION IT
TAKES OR OMITS TO TAKE IN GOOD FAITH IN ACCORDANCE WITH A DIRECTION RECEIVED BY
IT PURSUANT TO SECTION 6.05 HEREOF.
(D) WHETHER OR NOT THEREIN EXPRESSLY SO PROVIDED, EVERY PROVISION OF
THIS INDENTURE THAT IN ANY WAY RELATES TO THE TRUSTEE IS SUBJECT TO PARAGRAPHS
(A), (B), AND (C) OF THIS SECTION.
(E) NO PROVISION OF THIS INDENTURE SHALL REQUIRE THE TRUSTEE TO
EXPEND OR RISK ITS OWN FUNDS OR INCUR ANY LIABILITY. THE TRUSTEE SHALL BE UNDER
NO OBLIGATION TO EXERCISE ANY OF ITS RIGHTS AND POWERS UNDER THIS INDENTURE AT
THE REQUEST OF ANY HOLDERS, UNLESS SUCH HOLDER SHALL HAVE OFFERED TO THE TRUSTEE
SECURITY AND INDEMNITY SATISFACTORY TO IT AGAINST ANY LOSS, LIABILITY OR
EXPENSE.
(F) THE TRUSTEE SHALL NOT BE LIABLE FOR INTEREST ON ANY MONEY
RECEIVED BY IT EXCEPT AS THE TRUSTEE MAY AGREE IN WRITING WITH THE COMPANY.
MONEY HELD IN TRUST BY THE TRUSTEE NEED NOT BE SEGREGATED FROM OTHER FUNDS
EXCEPT TO THE EXTENT REQUIRED BY LAW.
SECTION 7.02. RIGHTS OF TRUSTEE.
(A) THE TRUSTEE MAY CONCLUSIVELY RELY UPON ANY DOCUMENT BELIEVED BY
IT TO BE GENUINE AND TO HAVE BEEN SIGNED OR PRESENTED BY THE PROPER PERSON. THE
TRUSTEE NEED NOT INVESTIGATE ANY FACT OR MATTER STATED IN THE DOCUMENT.
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(B) BEFORE THE TRUSTEE ACTS OR REFRAINS FROM ACTING, IT MAY REQUIRE
AN OFFICERS' CERTIFICATE OR AN OPINION OF COUNSEL OR BOTH. THE TRUSTEE SHALL NOT
BE LIABLE FOR ANY ACTION IT TAKES OR OMITS TO TAKE IN GOOD FAITH IN RELIANCE ON
SUCH OFFICERS' CERTIFICATE OR OPINION OF COUNSEL. THE TRUSTEE MAY CONSULT WITH
COUNSEL AND THE WRITTEN ADVICE OF SUCH COUNSEL OR ANY OPINION OF COUNSEL SHALL
BE FULL AND COMPLETE AUTHORIZATION AND PROTECTION FROM LIABILITY IN RESPECT OF
ANY ACTION TAKEN, SUFFERED OR OMITTED BY IT HEREUNDER IN GOOD FAITH AND IN
RELIANCE THEREON.
(C) THE TRUSTEE MAY ACT THROUGH ITS ATTORNEYS AND AGENTS AND SHALL
NOT BE RESPONSIBLE FOR THE MISCONDUCT OR NEGLIGENCE OF ANY AGENT APPOINTED WITH
DUE CARE.
(D) THE TRUSTEE SHALL NOT BE LIABLE FOR ANY ACTION IT TAKES OR OMITS
TO TAKE IN GOOD FAITH THAT IT BELIEVES TO BE AUTHORIZED OR WITHIN THE RIGHTS OR
POWERS CONFERRED UPON IT BY THIS INDENTURE.
(E) UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS INDENTURE, ANY
DEMAND, REQUEST, DIRECTION OR NOTICE FROM THE COMPANY SHALL BE SUFFICIENT IF
SIGNED BY AN OFFICER OF THE COMPANY.
(F) THE TRUSTEE SHALL BE UNDER NO OBLIGATION TO EXERCISE ANY OF THE
RIGHTS OR POWERS VESTED IN IT BY THIS INDENTURE AT THE REQUEST OR DIRECTION OF
ANY OF THE HOLDERS UNLESS SUCH HOLDERS SHALL HAVE OFFERED TO THE TRUSTEE
REASONABLE SECURITY OR INDEMNITY AGAINST THE COSTS, EXPENSES AND LIABILITIES
THAT MIGHT BE INCURRED BY IT IN COMPLIANCE WITH SUCH REQUEST OR DIRECTION.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
THE TRUSTEE IN ITS INDIVIDUAL OR ANY OTHER CAPACITY MAY BECOME THE
OWNER OR PLEDGEE OF NOTES AND MAY OTHERWISE DEAL WITH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WITH THE SAME RIGHTS IT WOULD HAVE IF IT WERE NOT
TRUSTEE. HOWEVER, IN THE EVENT THAT THE TRUSTEE ACQUIRES ANY CONFLICTING
INTEREST IT MUST ELIMINATE SUCH CONFLICT WITHIN 90 DAYS, APPLY TO THE SEC FOR
PERMISSION TO CONTINUE AS TRUSTEE OR RESIGN. ANY AGENT MAY DO THE SAME WITH
LIKE RIGHTS AND DUTIES. THE TRUSTEE IS ALSO SUBJECT TO SECTIONS 7.10 AND 7.11
HEREOF.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
THE TRUSTEE SHALL NOT BE RESPONSIBLE FOR AND MAKES NO REPRESENTATION
AS TO THE VALIDITY OR ADEQUACY OF THIS INDENTURE OR THE NOTES, IT SHALL NOT BE
ACCOUNTABLE FOR THE COMPANY'S USE OF THE PROCEEDS FROM THE NOTES OR ANY MONEY
PAID TO THE COMPANY OR UPON THE COMPANY'S DIRECTION UNDER ANY PROVISION OF THIS
INDENTURE, IT SHALL NOT BE RESPONSIBLE FOR THE USE OR APPLICATION OF ANY MONEY
RECEIVED BY ANY PAYING AGENT OTHER THAN THE TRUSTEE, AND IT SHALL NOT BE
RESPONSIBLE FOR ANY STATEMENT OR RECITAL HEREIN OR ANY STATEMENT IN THE NOTES OR
ANY OTHER DOCUMENT IN CONNECTION WITH THE SALE OF THE NOTES OR PURSUANT TO THIS
INDENTURE OTHER THAN ITS CERTIFICATE OF AUTHENTICATION.
SECTION 7.05. NOTICE OF DEFAULTS.
IF A DEFAULT OR EVENT OF DEFAULT OCCURS AND IS CONTINUING AND IF IT
IS KNOWN TO THE TRUSTEE, THE TRUSTEE SHALL MAIL TO HOLDERS OF NOTES A NOTICE OF
THE DEFAULT OR EVENT OF DEFAULT WITHIN 90 DAYS AFTER IT OCCURS. EXCEPT IN THE
CASE OF A DEFAULT OR EVENT OF DEFAULT IN PAYMENT OF PRINCIPAL OF, PREMIUM, IF
ANY, OR INTEREST ON ANY NOTE, THE TRUSTEE MAY WITHHOLD
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THE NOTICE IF AND SO LONG AS A COMMITTEE OF ITS RESPONSIBLE OFFICERS IN GOOD
FAITH DETERMINES THAT WITHHOLDING THE NOTICE IS IN THE INTERESTS OF THE HOLDERS
OF THE NOTES.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
WITHIN 60 DAYS AFTER EACH MAY 15 BEGINNING WITH THE MAY 15
FOLLOWING THE DATE OF THIS INDENTURE, AND FOR SO LONG AS NOTES REMAIN
OUTSTANDING, THE TRUSTEE SHALL MAIL TO THE HOLDERS OF THE NOTES A BRIEF
REPORT DATED AS OF SUCH REPORTING DATE THAT COMPLIES WITH TIA SECTION 313(A)
(BUT IF NO EVENT DESCRIBED IN TIA SECTION 313(A) HAS OCCURRED WITHIN THE
TWELVE MONTHS PRECEDING THE REPORTING DATE, NO REPORT NEED BE TRANSMITTED).
THE TRUSTEE ALSO SHALL COMPLY WITH TIA SECTION 313(B)(2). THE TRUSTEE SHALL
ALSO TRANSMIT BY MAIL ALL REPORTS AS REQUIRED BY TIA SECTION 313(C).
A COPY OF EACH REPORT AT THE TIME OF ITS MAILING TO THE HOLDERS OF
NOTES SHALL BE MAILED TO THE COMPANY AND FILED WITH THE SEC AND EACH STOCK
EXCHANGE ON WHICH THE NOTES ARE LISTED IN ACCORDANCE WITH TIA SECTION 313(D).
THE COMPANY SHALL PROMPTLY NOTIFY THE TRUSTEE WHEN THE NOTES ARE LISTED ON
ANY STOCK EXCHANGE.
SECTION 7.07. COMPENSATION AND INDEMNITY.
THE COMPANY SHALL PAY TO THE TRUSTEE FROM TIME TO TIME REASONABLE
COMPENSATION FOR ITS ACCEPTANCE OF THIS INDENTURE AND SERVICES HEREUNDER. 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 PROMPTLY
UPON REQUEST FOR ALL REASONABLE DISBURSEMENTS, ADVANCES AND EXPENSES INCURRED OR
MADE BY IT IN ADDITION TO THE COMPENSATION FOR ITS SERVICES. SUCH EXPENSES SHALL
INCLUDE THE REASONABLE COMPENSATION, DISBURSEMENTS AND EXPENSES OF THE TRUSTEE'S
AGENTS AND COUNSEL.
THE COMPANY SHALL INDEMNIFY THE TRUSTEE AGAINST ANY AND ALL
LOSSES, LIABILITIES OR EXPENSES INCURRED BY IT ARISING OUT OF OR IN
CONNECTION WITH THE ACCEPTANCE OR ADMINISTRATION OF ITS DUTIES UNDER THIS
INDENTURE, INCLUDING THE COSTS AND EXPENSES OF ENFORCING THIS INDENTURE
AGAINST THE COMPANY (INCLUDING THIS SECTION 7.07) AND DEFENDING ITSELF
AGAINST ANY CLAIM (WHETHER ASSERTED BY THE COMPANY OR ANY HOLDER OR ANY OTHER
PERSON) OR LIABILITY IN CONNECTION WITH THE EXERCISE OR PERFORMANCE OF ANY OF
ITS POWERS OR DUTIES HEREUNDER, EXCEPT TO THE EXTENT ANY SUCH LOSS, LIABILITY
OR EXPENSE MAY BE ATTRIBUTABLE TO ITS NEGLIGENCE OR BAD FAITH. THE TRUSTEE
SHALL NOTIFY THE COMPANY PROMPTLY OF ANY CLAIM FOR WHICH IT MAY SEEK
INDEMNITY. FAILURE BY THE TRUSTEE TO SO NOTIFY THE COMPANY SHALL NOT RELIEVE
THE COMPANY OF ITS OBLIGATIONS HEREUNDER. THE COMPANY SHALL DEFEND THE CLAIM
AND THE TRUSTEE SHALL COOPERATE IN THE DEFENSE. THE TRUSTEE MAY HAVE SEPARATE
COUNSEL AND THE COMPANY SHALL PAY THE REASONABLE FEES AND EXPENSES OF SUCH
COUNSEL. THE COMPANY NEED NOT PAY FOR ANY SETTLEMENT MADE WITHOUT ITS
CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
THE OBLIGATIONS OF THE COMPANY UNDER THIS SECTION 7.07 SHALL SURVIVE
THE SATISFACTION AND DISCHARGE OF THIS INDENTURE.
TO SECURE THE COMPANY'S PAYMENT OBLIGATIONS IN THIS SECTION, THE
TRUSTEE SHALL HAVE A LIEN PRIOR TO THE NOTES ON ALL MONEY OR PROPERTY HELD OR
COLLECTED BY THE TRUSTEE, EXCEPT THAT HELD IN TRUST TO PAY PRINCIPAL AND
INTEREST ON PARTICULAR NOTES. SUCH LIEN SHALL SURVIVE THE SATISFACTION AND
DISCHARGE OF THIS INDENTURE.
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WHEN THE TRUSTEE INCURS EXPENSES OR RENDERS SERVICES AFTER AN EVENT
OF DEFAULT SPECIFIED IN SECTION 6.01(G) OR (H) HEREOF OCCURS, THE EXPENSES AND
THE COMPENSATION FOR THE SERVICES (INCLUDING THE FEES AND EXPENSES OF ITS AGENTS
AND COUNSEL) ARE INTENDED TO CONSTITUTE EXPENSES OF ADMINISTRATION UNDER ANY
BANKRUPTCY LAW.
THE TRUSTEE SHALL COMPLY WITH THE PROVISIONS OF TIA SECTION
313(B)(2) TO THE EXTENT APPLICABLE.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A RESIGNATION OR REMOVAL OF THE TRUSTEE AND APPOINTMENT OF A
SUCCESSOR TRUSTEE SHALL BECOME EFFECTIVE ONLY UPON THE SUCCESSOR TRUSTEE'S
ACCEPTANCE OF APPOINTMENT AS PROVIDED IN THIS SECTION.
THE TRUSTEE MAY RESIGN IN WRITING AT ANY TIME AND BE DISCHARGED FROM
THE TRUST HEREBY CREATED BY SO NOTIFYING THE COMPANY. THE HOLDERS OF A MAJORITY
IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES MAY REMOVE THE TRUSTEE BY SO
NOTIFYING THE TRUSTEE AND THE COMPANY IN WRITING. THE COMPANY MAY REMOVE THE
TRUSTEE IF:
(A) THE TRUSTEE FAILS TO COMPLY WITH SECTION 7.10 HEREOF;
(B) THE TRUSTEE IS ADJUDGED A BANKRUPT OR AN INSOLVENT OR AN ORDER
FOR RELIEF IS ENTERED WITH RESPECT TO THE TRUSTEE UNDER ANY BANKRUPTCY LAW;
(C) A CUSTODIAN OR PUBLIC OFFICER TAKES CHARGE OF THE TRUSTEE OR ITS
PROPERTY; OR
(D) THE TRUSTEE BECOMES INCAPABLE OF ACTING.
IF THE TRUSTEE RESIGNS OR IS REMOVED OR IF A VACANCY EXISTS IN THE
OFFICE OF TRUSTEE FOR ANY REASON, THE COMPANY SHALL PROMPTLY APPOINT A SUCCESSOR
TRUSTEE. WITHIN ONE YEAR AFTER THE SUCCESSOR TRUSTEE TAKES OFFICE, THE HOLDERS
OF A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES MAY APPOINT A
SUCCESSOR TRUSTEE TO REPLACE THE SUCCESSOR TRUSTEE APPOINTED BY THE COMPANY.
IF A SUCCESSOR TRUSTEE DOES NOT TAKE OFFICE WITHIN 60 DAYS AFTER THE
RETIRING TRUSTEE RESIGNS OR IS REMOVED, THE RETIRING TRUSTEE, THE COMPANY, OR
THE HOLDERS OF AT LEAST 10% IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES
MAY PETITION ANY COURT OF COMPETENT JURISDICTION FOR THE APPOINTMENT OF A
SUCCESSOR TRUSTEE.
IF THE TRUSTEE, AFTER WRITTEN REQUEST BY ANY HOLDER WHO HAS BEEN A
HOLDER FOR AT LEAST SIX MONTHS, FAILS TO COMPLY WITH SECTION 7.10, SUCH HOLDER
MAY PETITION ANY COURT OF COMPETENT JURISDICTION FOR THE REMOVAL OF THE TRUSTEE
AND THE APPOINTMENT OF A SUCCESSOR TRUSTEE.
A SUCCESSOR TRUSTEE SHALL DELIVER A WRITTEN ACCEPTANCE OF ITS
APPOINTMENT TO THE RETIRING TRUSTEE AND TO THE COMPANY. THEREUPON, THE
RESIGNATION OR REMOVAL OF THE RETIRING TRUSTEE SHALL BECOME EFFECTIVE, AND THE
SUCCESSOR TRUSTEE SHALL HAVE ALL THE RIGHTS, POWERS AND DUTIES OF THE TRUSTEE
UNDER THIS INDENTURE. THE SUCCESSOR TRUSTEE SHALL MAIL A NOTICE OF ITS
SUCCESSION TO HOLDERS. THE RETIRING TRUSTEE SHALL PROMPTLY TRANSFER ALL PROPERTY
HELD BY IT AS TRUSTEE TO THE SUCCESSOR TRUSTEE, PROVIDED ALL SUMS OWING TO THE
TRUSTEE HEREUNDER HAVE BEEN PAID AND SUBJECT TO THE LIEN PROVIDED FOR IN SECTION
7.07 HEREOF. NOTWITHSTANDING
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REPLACEMENT OF THE TRUSTEE PURSUANT TO THIS SECTION 7.08, THE COMPANY'S
OBLIGATIONS UNDER SECTION 7.07 HEREOF SHALL CONTINUE FOR THE BENEFIT OF THE
RETIRING TRUSTEE.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
IF THE TRUSTEE CONSOLIDATES, MERGES OR CONVERTS INTO, OR TRANSFERS
ALL OR SUBSTANTIALLY ALL OF ITS CORPORATE TRUST BUSINESS TO, ANOTHER
CORPORATION, THE SUCCESSOR CORPORATION WITHOUT ANY FURTHER ACT SHALL BE THE
SUCCESSOR TRUSTEE.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
THERE SHALL AT ALL TIMES BE A TRUSTEE HEREUNDER THAT IS A CORPORATION
ORGANIZED AND DOING BUSINESS UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR
OF ANY STATE THEREOF THAT IS AUTHORIZED UNDER SUCH LAWS TO EXERCISE CORPORATE
TRUSTEE POWER, THAT IS SUBJECT TO SUPERVISION OR EXAMINATION BY FEDERAL OR STATE
AUTHORITIES AND THAT HAS A COMBINED CAPITAL AND SURPLUS OF AT LEAST $100 MILLION
OR BE A PART OF A BANK HOLDING COMPANY WITH A COMBINED CAPITAL AND SURPLUS OF AT
LEAST $100 MILLION AS SET FORTH IN ITS MOST RECENT PUBLISHED ANNUAL REPORT OF
CONDITION.
THIS INDENTURE SHALL ALWAYS HAVE A TRUSTEE WHO SATISFIES THE
REQUIREMENTS OF TIA SECTIONS 310(A)(1), (2) AND (5). THE TRUSTEE IS SUBJECT
TO TIA SECTION 310(B).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
THE TRUSTEE IS SUBJECT TO TIA SECTION 311(A), EXCLUDING ANY CREDITOR
RELATIONSHIP LISTED IN TIA SECTION 311(B). A TRUSTEE WHO HAS RESIGNED OR BEEN
REMOVED SHALL BE SUBJECT TO TIA SECTION 311(A) TO THE EXTENT INDICATED THEREIN.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
THE COMPANY MAY, AT THE OPTION OF ITS BOARD OF DIRECTORS EVIDENCED BY
A RESOLUTION SET FORTH IN AN OFFICERS' CERTIFICATE, AT ANY TIME, ELECT TO HAVE
EITHER SECTION 8.02 OR 8.03 HEREOF BE APPLIED TO ALL OUTSTANDING NOTES UPON
COMPLIANCE WITH THE CONDITIONS SET FORTH BELOW IN THIS ARTICLE EIGHT.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
UPON THE COMPANY'S EXERCISE UNDER SECTION 8.01 HEREOF OF THE OPTION
APPLICABLE TO THIS SECTION 8.02, THE COMPANY AND THE SUBSIDIARY GUARANTORS
SHALL, SUBJECT TO THE SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 8.04
HEREOF, BE DEEMED TO HAVE BEEN DISCHARGED FROM THEIR RESPECTIVE OBLIGATIONS WITH
RESPECT TO ALL OUTSTANDING NOTES AND SUBSIDIARY GUARANTIES, RESPECTIVELY, ON THE
DATE THE CONDITIONS SET FORTH BELOW ARE SATISFIED (HEREINAFTER, "LEGAL
DEFEASANCE"). FOR THIS PURPOSE, LEGAL DEFEASANCE MEANS THAT THE COMPANY SHALL BE
DEEMED TO HAVE PAID AND DISCHARGED THE ENTIRE INDEBTEDNESS REPRESENTED BY THE
OUTSTANDING NOTES, WHICH SHALL THEREAFTER BE DEEMED TO BE "OUTSTANDING" ONLY FOR
THE PURPOSES OF SECTION 8.05 HEREOF AND THE OTHER SECTIONS OF THIS INDENTURE
REFERRED TO IN (A) AND (B) BELOW, AND TO HAVE SATISFIED ALL ITS OTHER
OBLIGATIONS UNDER SUCH NOTES AND THIS
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INDENTURE AND THE SUBSIDIARY GUARANTORS SHALL BE DEEMED TO HAVE BEEN DISCHARGED
FROM THEIR OBLIGATIONS WITH RESPECT TO THE SUBSIDIARY GUARANTIES (AND THE
TRUSTEE, ON DEMAND OF AND AT THE EXPENSE OF THE COMPANY, SHALL EXECUTE PROPER
INSTRUMENTS ACKNOWLEDGING THE SAME), EXCEPT FOR THE FOLLOWING PROVISIONS WHICH
SHALL SURVIVE UNTIL OTHERWISE TERMINATED OR DISCHARGED HEREUNDER: (A) THE RIGHTS
OF HOLDERS OF OUTSTANDING NOTES TO RECEIVE SOLELY FROM THE TRUST FUND DESCRIBED
IN SECTION 8.04 HEREOF, AND AS MORE FULLY SET FORTH IN SUCH SECTION, PAYMENTS IN
RESPECT OF THE PRINCIPAL OF, PREMIUM, LIQUIDATED DAMAGES, IF ANY, AND INTEREST
ON SUCH NOTES WHEN SUCH PAYMENTS ARE DUE, (B) THE COMPANY'S OBLIGATIONS WITH
RESPECT TO SUCH NOTES UNDER ARTICLE 2 AND SECTION 4.02 HEREOF, (C) THE RIGHTS,
POWERS, TRUSTS, DUTIES AND IMMUNITIES OF THE TRUSTEE HEREUNDER AND THE COMPANY'S
AND THE SUBSIDIARY GUARANTORS' OBLIGATIONS IN CONNECTION THEREWITH AND (D) THIS
ARTICLE EIGHT. SUBJECT TO COMPLIANCE WITH THIS ARTICLE EIGHT, THE COMPANY MAY
EXERCISE ITS OPTION UNDER THIS SECTION 8.02 NOTWITHSTANDING THE PRIOR EXERCISE
OF ITS OPTION UNDER SECTION 8.03 HEREOF.
SECTION 8.03. COVENANT DEFEASANCE.
UPON THE COMPANY'S EXERCISE UNDER SECTION 8.01 HEREOF OF THE OPTION
APPLICABLE TO THIS SECTION 8.03, THE COMPANY AND THE SUBSIDIARY GUARANTORS
SHALL, SUBJECT TO THE SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 8.04
HEREOF, BE RELEASED FROM ITS OBLIGATIONS UNDER THE COVENANTS CONTAINED IN
SECTIONS 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19,
4.20 AND 4.21 HEREOF AND CLAUSE (IV) OF SECTION 5.01 HEREOF WITH RESPECT TO THE
OUTSTANDING NOTES ON AND AFTER THE DATE THE CONDITIONS SET FORTH IN SECTION 8.04
ARE SATISFIED (HEREINAFTER, "COVENANT DEFEASANCE"), AND THE NOTES SHALL
THEREAFTER BE DEEMED NOT "OUTSTANDING" FOR THE PURPOSES OF ANY DIRECTION,
WAIVER, CONSENT OR DECLARATION OR ACT OF HOLDERS (AND THE CONSEQUENCES OF ANY
THEREOF) IN CONNECTION WITH SUCH COVENANTS, BUT SHALL CONTINUE TO BE DEEMED
"OUTSTANDING" FOR ALL OTHER PURPOSES HEREUNDER (IT BEING UNDERSTOOD THAT SUCH
NOTES SHALL NOT BE DEEMED OUTSTANDING FOR ACCOUNTING PURPOSES). FOR THIS
PURPOSE, COVENANT DEFEASANCE MEANS THAT, WITH RESPECT TO THE OUTSTANDING NOTES,
THE COMPANY OR THE SUBSIDIARY GUARANTORS MAY OMIT TO COMPLY WITH AND SHALL HAVE
NO LIABILITY IN RESPECT OF ANY TERM, CONDITION OR LIMITATION SET FORTH IN ANY
SUCH COVENANT, WHETHER DIRECTLY OR INDIRECTLY, BY REASON OF ANY REFERENCE
ELSEWHERE HEREIN TO ANY SUCH COVENANT OR BY REASON OF ANY REFERENCE IN ANY SUCH
COVENANT TO ANY OTHER PROVISION HEREIN OR IN ANY OTHER DOCUMENT AND SUCH
OMISSION TO COMPLY SHALL NOT CONSTITUTE A DEFAULT OR AN EVENT OF DEFAULT UNDER
SECTION 6.01 HEREOF, BUT, EXCEPT AS SPECIFIED ABOVE, THE REMAINDER OF THIS
INDENTURE AND SUCH NOTES SHALL BE UNAFFECTED THEREBY. IN ADDITION, UPON THE
COMPANY'S EXERCISE UNDER SECTION 8.01 HEREOF OF THE OPTION APPLICABLE TO THIS
SECTION 8.03 HEREOF, SUBJECT TO THE SATISFACTION OF THE CONDITIONS SET FORTH IN
SECTION 8.04 HEREOF, SECTIONS 6.01(C) THROUGH 6.01(F) HEREOF SHALL NOT
CONSTITUTE EVENTS OF DEFAULT.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
THE FOLLOWING SHALL BE THE CONDITIONS TO THE APPLICATION OF EITHER
SECTION 8.02 OR 8.03 HEREOF TO THE OUTSTANDING NOTES:
IN ORDER TO EXERCISE EITHER LEGAL DEFEASANCE OR COVENANT DEFEASANCE:
(A) THE COMPANY MUST IRREVOCABLY DEPOSIT WITH THE TRUSTEE, IN TRUST,
FOR THE BENEFIT OF THE HOLDERS, CASH IN UNITED STATES DOLLARS, NON-CALLABLE
GOVERNMENT SECURITIES, OR A COMBINATION THEREOF, IN SUCH AMOUNTS AS SHALL BE
SUFFICIENT, IN THE OPINION OF A NATIONALLY RECOGNIZED FIRM OF INDEPENDENT PUBLIC
ACCOUNTANTS, TO PAY THE PRINCIPAL OF, OR INTEREST AND PREMIUM AND LIQUIDATED
DAMAGES, IF ANY, ON THE OUTSTANDING NOTES ON THE
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STATED MATURITY OR ON THE APPLICABLE REDEMPTION DATE, AS THE CASE MAY BE;
(B) IN THE CASE OF AN ELECTION UNDER SECTION 8.02 HEREOF, 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 OF THE
OUTSTANDING NOTES SHALL NOT RECOGNIZE INCOME, GAIN OR LOSS FOR FEDERAL INCOME
TAX PURPOSES AS A RESULT OF SUCH LEGAL DEFEASANCE AND SHALL BE SUBJECT TO
FEDERAL INCOME TAX ON THE SAME AMOUNTS, IN THE SAME MANNER AND AT THE SAME TIMES
AS WOULD HAVE BEEN THE CASE IF SUCH LEGAL DEFEASANCE HAD NOT OCCURRED;
(C) IN THE CASE OF AN ELECTION UNDER SECTION 8.03 HEREOF, 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 OF THE
OUTSTANDING NOTES SHALL NOT RECOGNIZE INCOME, GAIN OR LOSS FOR FEDERAL INCOME
TAX PURPOSES AS A RESULT OF SUCH COVENANT DEFEASANCE AND SHALL BE SUBJECT TO
FEDERAL INCOME TAX ON THE SAME AMOUNTS, IN THE SAME MANNER AND AT THE SAME TIMES
AS WOULD HAVE BEEN THE CASE IF SUCH COVENANT DEFEASANCE HAD NOT OCCURRED;
(D) NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING ON THE DATE OF SUCH DEPOSIT (OTHER THAN A DEFAULT OR EVENT OF DEFAULT
RESULTING FROM THE INCURRENCE OF INDEBTEDNESS ALL OR A PORTION OF THE PROCEEDS
OF WHICH SHALL BE USED TO DEFEASE THE NOTES PURSUANT TO THIS ARTICLE EIGHT
CONCURRENTLY WITH SUCH INCURRENCE) OR INSOFAR AS SECTIONS 6.01(G) OR 6.01(H)
HEREOF IS CONCERNED, AT ANY TIME IN THE PERIOD ENDING ON THE 91ST DAY AFTER THE
DATE OF DEPOSIT;
(E) SUCH LEGAL DEFEASANCE OR COVENANT DEFEASANCE SHALL NOT RESULT IN
A BREACH OR VIOLATION OF, OR CONSTITUTE A DEFAULT UNDER, ANY MATERIAL AGREEMENT
OR INSTRUMENT (OTHER THAN THIS INDENTURE) TO WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES IS A PARTY OR BY WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS
BOUND;
(F) THE COMPANY SHALL HAVE DELIVERED TO THE TRUSTEE AN OPINION OF
COUNSEL (WHICH MAY BE SUBJECT TO CUSTOMARY EXCEPTIONS) TO THE EFFECT THAT,
ASSUMING NO INTERVENING BANKRUPTCY OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR
BETWEEN THE DATE OF DEPOSIT AND THE 91ST DAY FOLLOWING THE DEPOSIT AND ASSUMING
THAT NO HOLDER IS AN "INSIDER" OF THE COMPANY UNDER APPLICABLE BANKRUPTCY LAW,
AFTER THE 91ST DAY FOLLOWING THE DEPOSIT, THE TRUST FUNDS SHALL NOT BE SUBJECT
TO THE EFFECT OF ANY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR
SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY;
(G) 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; AND
(H) THE COMPANY SHALL HAVE DELIVERED TO THE TRUSTEE AN OFFICERS'
CERTIFICATE AND AN OPINION OF COUNSEL, EACH STATING THAT ALL CONDITIONS
PRECEDENT PROVIDED FOR OR RELATING TO THE LEGAL DEFEASANCE OR THE COVENANT
DEFEASANCE HAVE BEEN COMPLIED WITH.
NOTWITHSTANDING THE FOREGOING, THE OPINION OF COUNSEL REQUIRED BY
CLAUSES (B) OR
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(C) ABOVE NEED NOT BE DELIVERED IF, AT SUCH TIME, ALL OUTSTANDING NOTES HAVE
BEEN IRREVOCABLY CALLED FOR REDEMPTION IN ACCORDANCE WITH THE TERMS OF THIS
INDENTURE.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
SUBJECT TO SECTION 8.06 HEREOF, ALL MONEY AND NON-CALLABLE GOVERNMENT
SECURITIES (INCLUDING THE PROCEEDS THEREOF) DEPOSITED WITH THE TRUSTEE (OR OTHER
QUALIFYING TRUSTEE, COLLECTIVELY FOR PURPOSES OF THIS SECTION 8.05, THE
"TRUSTEE") PURSUANT TO SECTION 8.04 HEREOF IN RESPECT OF THE OUTSTANDING NOTES
SHALL BE HELD IN TRUST AND APPLIED BY THE TRUSTEE, IN ACCORDANCE WITH THE
PROVISIONS OF SUCH NOTES AND THIS INDENTURE, TO THE PAYMENT, EITHER DIRECTLY OR
THROUGH ANY PAYING AGENT (INCLUDING THE COMPANY ACTING AS PAYING AGENT) AS THE
TRUSTEE MAY DETERMINE, TO THE HOLDERS OF SUCH NOTES OF ALL SUMS DUE AND TO
BECOME DUE THEREON IN RESPECT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST, BUT
SUCH MONEY NEED NOT BE SEGREGATED FROM OTHER FUNDS EXCEPT TO THE EXTENT REQUIRED
BY LAW.
THE COMPANY SHALL PAY AND INDEMNIFY THE TRUSTEE AGAINST ANY TAX, FEE
OR OTHER CHARGE IMPOSED ON OR ASSESSED AGAINST THE CASH OR NON-CALLABLE
GOVERNMENT SECURITIES DEPOSITED PURSUANT TO SECTION 8.04 HEREOF OR THE PRINCIPAL
AND INTEREST RECEIVED IN RESPECT THEREOF OTHER THAN ANY SUCH TAX, FEE OR OTHER
CHARGE WHICH BY LAW IS FOR THE ACCOUNT OF THE HOLDERS OF THE OUTSTANDING NOTES.
ANYTHING IN THIS ARTICLE EIGHT TO THE CONTRARY NOTWITHSTANDING, THE
TRUSTEE SHALL DELIVER OR PAY TO THE COMPANY FROM TIME TO TIME UPON THE REQUEST
OF THE COMPANY ANY MONEY OR NON-CALLABLE GOVERNMENT SECURITIES HELD BY IT AS
PROVIDED IN SECTION 8.04 HEREOF WHICH, IN THE OPINION OF A NATIONALLY RECOGNIZED
FIRM OF INDEPENDENT PUBLIC ACCOUNTANTS EXPRESSED IN A WRITTEN CERTIFICATION
THEREOF DELIVERED TO THE TRUSTEE (WHICH MAY BE THE OPINION DELIVERED UNDER
SECTION 8.04(A) HEREOF), ARE IN EXCESS OF THE AMOUNT THEREOF THAT WOULD THEN BE
REQUIRED TO BE DEPOSITED TO EFFECT AN EQUIVALENT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
SECTION 8.06. REPAYMENT TO COMPANY.
ANY MONEY DEPOSITED WITH THE TRUSTEE OR ANY PAYING AGENT, OR THEN
HELD BY THE COMPANY, IN TRUST FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF
ANY, OR INTEREST ON ANY NOTE AND REMAINING UNCLAIMED FOR TWO YEARS AFTER SUCH
PRINCIPAL, AND PREMIUM, IF ANY, OR INTEREST HAS BECOME DUE AND PAYABLE SHALL BE
PAID TO THE COMPANY ON ITS REQUEST OR (IF THEN HELD BY THE COMPANY) SHALL BE
DISCHARGED FROM SUCH TRUST; AND THE HOLDER OF SUCH NOTE SHALL THEREAFTER LOOK
ONLY TO THE COMPANY FOR PAYMENT THEREOF, AND ALL LIABILITY OF THE TRUSTEE OR
SUCH PAYING AGENT WITH RESPECT TO SUCH TRUST MONEY, AND ALL LIABILITY OF THE
COMPANY AS TRUSTEE THEREOF, SHALL THEREUPON CEASE; PROVIDED, HOWEVER, THAT THE
TRUSTEE OR SUCH PAYING AGENT, BEFORE BEING REQUIRED TO MAKE ANY SUCH REPAYMENT,
MAY AT THE EXPENSE OF THE COMPANY CAUSE TO BE PUBLISHED ONCE, IN THE NEW YORK
TIMES AND THE WALL STREET JOURNAL (NATIONAL EDITION), NOTICE THAT SUCH MONEY
REMAINS UNCLAIMED AND THAT, AFTER A DATE SPECIFIED THEREIN, WHICH SHALL NOT BE
LESS THAN 30 DAYS FROM THE DATE OF SUCH NOTIFICATION OR PUBLICATION, ANY
UNCLAIMED BALANCE OF SUCH MONEY THEN REMAINING SHALL BE REPAID TO THE COMPANY.
SECTION 8.07. REINSTATEMENT.
IF THE TRUSTEE OR PAYING AGENT IS UNABLE TO APPLY ANY UNITED STATES
DOLLARS OR NON-
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CALLABLE GOVERNMENT SECURITIES IN ACCORDANCE WITH SECTION 8.02 OR 8.03 HEREOF,
AS THE CASE MAY BE, BY REASON OF ANY ORDER OR JUDGMENT OF ANY COURT OR
GOVERNMENTAL AUTHORITY ENJOINING, RESTRAINING OR OTHERWISE PROHIBITING SUCH
APPLICATION, THEN THE COMPANY'S OBLIGATIONS UNDER THIS INDENTURE AND THE NOTES
SHALL BE REVIVED AND REINSTATED AS THOUGH NO DEPOSIT HAD OCCURRED PURSUANT TO
SECTION 8.02 OR 8.03 HEREOF UNTIL SUCH TIME AS THE TRUSTEE OR PAYING AGENT IS
PERMITTED TO APPLY ALL SUCH MONEY IN ACCORDANCE WITH SECTION 8.02 OR 8.03
HEREOF, AS THE CASE MAY BE; PROVIDED, HOWEVER, THAT, IF THE COMPANY MAKES ANY
PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON ANY NOTE FOLLOWING THE
REINSTATEMENT OF ITS OBLIGATIONS, THE COMPANY SHALL BE SUBROGATED TO THE RIGHTS
OF THE HOLDERS OF SUCH NOTES TO RECEIVE SUCH PAYMENT FROM THE MONEY HELD BY THE
TRUSTEE OR PAYING AGENT.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
NOTWITHSTANDING SECTION 9.02 OF THIS INDENTURE, THE COMPANY, THE
SUBSIDIARY GUARANTORS AND THE TRUSTEE MAY AMEND OR SUPPLEMENT THIS INDENTURE,
THE SUBSIDIARY GUARANTIES OR THE NOTES WITHOUT THE CONSENT OF ANY HOLDER OF A
NOTE:
(A) TO CURE ANY AMBIGUITY, DEFECT OR INCONSISTENCY;
(B) TO PROVIDE FOR UNCERTIFICATED NOTES IN ADDITION TO OR IN PLACE OF
CERTIFICATED NOTES OR TO ALTER THE PROVISIONS OF ARTICLE 2 HEREOF (INCLUDING THE
RELATED DEFINITIONS) IN A MANNER THAT DOES NOT MATERIALLY ADVERSELY AFFECT ANY
HOLDER;
(C) TO PROVIDE FOR THE ASSUMPTION OF THE COMPANY'S, OR ANY SUBSIDIARY
GUARANTOR'S OBLIGATIONS TO THE HOLDERS OF THE NOTES BY A SUCCESSOR TO THE
COMPANY PURSUANT TO ARTICLE 5 HEREOF;
(D) TO MAKE ANY CHANGE THAT WOULD PROVIDE ANY ADDITIONAL RIGHTS OR
BENEFITS TO THE HOLDERS OF THE NOTES, INCLUDING PROVIDING FOR ADDITIONAL
SUBSIDIARY GUARANTIES, OR THAT DOES NOT ADVERSELY AFFECT THE LEGAL RIGHTS
HEREUNDER OF ANY HOLDER OF THE NOTE;
(E) TO COMPLY WITH REQUIREMENTS OF THE SEC IN ORDER TO EFFECT OR
MAINTAIN THE QUALIFICATION OF THIS INDENTURE UNDER THE TIA;
(F) TO PROVIDE FOR THE ISSUANCE OF ADDITIONAL NOTES IN ACCORDANCE
WITH THE LIMITATIONS SET FORTH IN THIS INDENTURE AS OF THE DATE HEREOF; OR
(G) TO ALLOW ANY GUARANTOR TO EXECUTE A SUPPLEMENTAL INDENTURE AND/OR
A SUBSIDIARY GUARANTEE WITH RESPECT TO THE NOTES.
UPON THE REQUEST OF THE COMPANY ACCOMPANIED BY A RESOLUTION OF ITS
BOARD OF DIRECTORS AUTHORIZING THE EXECUTION OF ANY SUCH AMENDED OR SUPPLEMENTAL
INDENTURE, AND UPON RECEIPT BY THE TRUSTEE OF THE DOCUMENTS DESCRIBED IN SECTION
7.02 HEREOF, THE TRUSTEE SHALL JOIN WITH THE COMPANY AND THE SUBSIDIARY
GUARANTORS IN THE EXECUTION OF ANY AMENDED OR SUPPLE MENTAL INDENTURE AUTHORIZED
OR PERMITTED BY THE TERMS OF THIS INDENTURE AND TO MAKE ANY FURTHER APPROPRIATE
AGREEMENTS AND STIPULATIONS THAT MAY BE THEREIN CONTAINED, BUT THE TRUSTEE SHALL
NOT BE OBLIGATED TO ENTER INTO SUCH AMENDED OR SUPPLEMENTAL
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INDENTURE THAT AFFECTS ITS OWN RIGHTS, DUTIES OR IMMUNITIES UNDER THIS INDENTURE
OR OTHERWISE.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
EXCEPT AS PROVIDED BELOW IN THIS SECTION 9.02, THE COMPANY AND THE
TRUSTEE MAY AMEND OR SUPPLEMENT THIS INDENTURE (INCLUDING SECTION 3.09, 4.10 AND
4.15 HEREOF) AND THE NOTES MAY BE AMENDED OR SUPPLEMENTED WITH THE CONSENT OF
THE HOLDERS OF AT LEAST A MAJORITY IN PRINCIPAL AMOUNT OF THE NOTES (INCLUDING
ADDITIONAL NOTES, IF ANY) THEN OUTSTANDING (INCLUDING, WITHOUT LIMITATION,
CONSENTS OBTAINED IN CONNECTION WITH A TENDER OFFER OR EXCHANGE OFFER FOR, OR
PURCHASE OF, THE NOTES), AND, SUBJECT TO SECTIONS 6.04 AND 6.07 HEREOF, ANY
EXISTING DEFAULT OR EVENT OF DEFAULT (OTHER THAN A DEFAULT OR EVENT OF DEFAULT
IN THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE NOTES,
EXCEPT A PAYMENT DEFAULT RESULTING FROM AN ACCELERATION THAT HAS BEEN RESCINDED)
OR COMPLIANCE WITH ANY PROVISION OF THIS INDENTURE OR THE NOTES MAY BE WAIVED
WITH THE CONSENT OF THE HOLDERS OF A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN
OUTSTANDING NOTES (INCLUDING ADDITIONAL NOTES, IF ANY) VOTING AS A SINGLE CLASS
(INCLUDING, WITHOUT LIMITATION, CONSENTS OBTAINED IN CONNECTION WITH A TENDER
OFFER OR EXCHANGE OFFER FOR, OR PURCHASE OF, THE NOTES).
UPON THE REQUEST OF THE COMPANY ACCOMPANIED BY A RESOLUTION OF ITS
BOARD OF DIRECTORS AUTHORIZING THE EXECUTION OF ANY SUCH AMENDED OR SUPPLEMENTAL
INDENTURE, AND UPON THE FILING WITH THE TRUSTEE OF EVIDENCE SATISFACTORY TO THE
TRUSTEE OF THE CONSENT OF THE HOLDERS OF NOTES AS AFORESAID, AND UPON RECEIPT BY
THE TRUSTEE OF THE DOCUMENTS DESCRIBED IN SECTION 7.02 HEREOF, THE TRUSTEE SHALL
JOIN WITH THE COMPANY IN THE EXECUTION OF SUCH AMENDED OR SUPPLEMENTAL INDENTURE
UNLESS SUCH AMENDED OR SUPPLEMENTAL INDENTURE DIRECTLY AFFECTS THE TRUSTEE'S OWN
RIGHTS, DUTIES OR IMMUNITIES UNDER THIS INDENTURE OR OTHERWISE, IN WHICH CASE
THE TRUSTEE MAY IN ITS DISCRETION, BUT SHALL NOT BE OBLIGATED TO, ENTER INTO
SUCH AMENDED OR SUPPLEMENTAL INDENTURE.
IT SHALL NOT BE NECESSARY FOR THE CONSENT OF THE HOLDERS OF NOTES
UNDER THIS SECTION 9.02 TO APPROVE THE PARTICULAR FORM OF ANY PROPOSED AMENDMENT
OR WAIVER, BUT IT SHALL BE SUFFICIENT IF SUCH CONSENT APPROVES THE SUBSTANCE
THEREOF.
AFTER AN AMENDMENT, SUPPLEMENT OR WAIVER UNDER THIS SECTION BECOMES
EFFECTIVE, THE COMPANY SHALL MAIL TO THE HOLDERS OF NOTES AFFECTED THEREBY A
NOTICE BRIEFLY DESCRIBING THE AMENDMENT, SUPPLEMENT OR WAIVER. ANY FAILURE OF
THE COMPANY TO MAIL SUCH NOTICE, OR ANY DEFECT THEREIN, SHALL NOT, HOWEVER, IN
ANY WAY IMPAIR OR AFFECT THE VALIDITY OF ANY SUCH AMENDED OR SUPPLEMENTAL
INDENTURE OR WAIVER. SUBJECT TO SECTIONS 6.04 AND 6.07 HEREOF, THE HOLDERS OF A
MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF THE NOTES THEN OUTSTANDING VOTING AS A
SINGLE CLASS MAY WAIVE COMPLIANCE IN A PARTICULAR INSTANCE BY THE COMPANY WITH
ANY PROVISION OF THIS INDENTURE OR THE NOTES. HOWEVER, WITHOUT THE CONSENT OF
EACH HOLDER AFFECTED, AN AMENDMENT OR WAIVER UNDER THIS SECTION 9.02 MAY NOT
(WITH RESPECT TO ANY NOTES (INCLUDING ADDITIONAL NOTES, IF ANY) HELD BY A
NON-CONSENTING HOLDER):
(A) REDUCE THE PRINCIPAL AMOUNT OF NOTES WHOSE HOLDERS MUST CONSENT
TO AN AMENDMENT, SUPPLEMENT OR WAIVER;
(B) REDUCE THE PRINCIPAL OF OR CHANGE THE FIXED MATURITY OF ANY NOTE
OR ALTER OR WAIVE ANY OF THE PROVISIONS WITH RESPECT TO THE REDEMPTION OF THE
NOTES EXCEPT AS PROVIDED ABOVE WITH RESPECT TO SECTIONS 3.09, 4.10 AND 4.15
HEREOF;
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(C) REDUCE THE RATE OF OR CHANGE THE TIME FOR PAYMENT OF INTEREST,
INCLUDING DEFAULT INTEREST, ON ANY NOTE;
(D) WAIVE A DEFAULT OR EVENT OF DEFAULT IN THE PAYMENT OF PRINCIPAL
OF OR INTEREST OR PREMIUM OR LIQUIDATED DAMAGES, IF ANY, ON THE NOTES (EXCEPT A
RESCISSION OF ACCELERATION OF THE NOTES BY THE HOLDERS OF AT LEAST A MAJORITY IN
AGGREGATE PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES (INCLUDING ADDITIONAL
NOTES, IF ANY) AND A WAIVER OF THE PAYMENT DEFAULT THAT RESULTED FROM SUCH
ACCELERATION);
(E) MAKE ANY NOTE PAYABLE IN MONEY OTHER THAN THAT STATED IN THE
NOTES;
(F) MAKE ANY CHANGE IN THE PROVISIONS OF THIS INDENTURE RELATING TO
WAIVERS OF PAST DEFAULTS OR THE RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENTS
OF PRINCIPAL OF OR INTEREST OR PREMIUM OR LIQUIDATED DAMAGES, IF ANY, ON THE
NOTES;
(G) RELEASE ANY SUBSIDIARY GUARANTOR FROM ANY OF ITS OBLIGATIONS
UNDER ITS SUBSIDIARY GUARANTY OR THE INDENTURE, EXCEPT IN ACCORDANCE WITH THE
TERMS OF THE INDENTURE;
(H) MAKE ANY CHANGE IN SECTION 6.04 OR 6.07 HEREOF OR IN THE
FOREGOING AMENDMENT AND WAIVER PROVISIONS; OR
(I) WAIVE A REDEMPTION PAYMENT WITH RESPECT TO ANY NOTE OTHER THAN A
PAYMENT REQUIRED UNDER SECTIONS 4.10 OR 4.15.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
EVERY AMENDMENT OR SUPPLEMENT TO THIS INDENTURE OR THE NOTES SHALL BE
SET FORTH IN AN AMENDED OR SUPPLEMENTAL INDENTURE THAT COMPLIES WITH THE TIA AS
THEN IN EFFECT.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
UNTIL AN AMENDMENT, SUPPLEMENT OR WAIVER BECOMES EFFECTIVE, A CONSENT
TO IT BY A HOLDER OF A NOTE IS A CONTINUING CONSENT BY THE HOLDER OF A NOTE AND
EVERY SUBSEQUENT HOLDER OF A NOTE OR PORTION OF A NOTE THAT EVIDENCES THE SAME
DEBT AS THE CONSENTING HOLDER'S NOTE, EVEN IF NOTATION OF THE CONSENT IS NOT
MADE ON ANY NOTE. HOWEVER, ANY SUCH HOLDER OF A NOTE OR SUBSEQUENT HOLDER OF A
NOTE MAY REVOKE THE CONSENT AS TO ITS NOTE IF THE TRUSTEE RECEIVES WRITTEN
NOTICE OF REVOCATION BEFORE THE DATE THE WAIVER, SUPPLEMENT OR AMENDMENT BECOMES
EFFECTIVE. AN AMENDMENT, SUPPLEMENT OR WAIVER BECOMES EFFECTIVE IN ACCORDANCE
WITH ITS TERMS AND THEREAFTER BINDS EVERY HOLDER.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
THE TRUSTEE MAY PLACE AN APPROPRIATE NOTATION ABOUT AN AMENDMENT,
SUPPLEMENT OR WAIVER ON ANY NOTE THEREAFTER AUTHENTICATED. THE COMPANY IN
EXCHANGE FOR ALL NOTES MAY ISSUE AND THE TRUSTEE SHALL, UPON RECEIPT OF AN
AUTHENTICATION ORDER, AUTHENTICATE NEW NOTES THAT REFLECT THE AMENDMENT,
SUPPLEMENT OR WAIVER.
FAILURE TO MAKE THE APPROPRIATE NOTATION OR ISSUE A NEW NOTE SHALL
NOT AFFECT THE VALIDITY AND EFFECT OF SUCH AMENDMENT, SUPPLEMENT OR WAIVER.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
THE TRUSTEE SHALL SIGN ANY AMENDED OR SUPPLEMENTAL INDENTURE
AUTHORIZED PURSUANT TO THIS ARTICLE NINE IF THE AMENDMENT OR SUPPLEMENT DOES NOT
ADVERSELY AFFECT THE RIGHTS, DUTIES, LIABILITIES OR IMMUNITIES OF THE TRUSTEE.
THE COMPANY MAY NOT SIGN AN AMENDMENT OR SUPPLEMENTAL INDENTURE UNTIL THE BOARD
OF DIRECTORS APPROVES IT. IN EXECUTING ANY AMENDED OR SUPPLEMENTAL INDENTURE,
THE TRUSTEE SHALL BE ENTITLED TO RECEIVE AND (SUBJECT TO SECTION 7.01 HEREOF)
SHALL BE FULLY PROTECTED IN RELYING UPON, IN ADDITION TO THE DOCUMENTS REQUIRED
BY SECTION 10.04 HEREOF, AN OFFICER'S CERTIFICATE AND AN OPINION OF COUNSEL
STATING THAT THE EXECUTION OF SUCH AMENDED OR SUPPLEMENTAL INDENTURE IS
AUTHORIZED OR PERMITTED BY THIS INDENTURE.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
THE COMPANY AGREES, AND EACH HOLDER BY ACCEPTING A NOTE AGREES, THAT
THE INDEBTEDNESS EVIDENCED BY AND OTHER OBLIGATIONS WITH RESPECT TO THE NOTES
ARE SUBORDINATED IN RIGHT OF PAYMENT, TO THE EXTENT AND IN THE MANNER PROVIDED
IN THIS ARTICLE 10, TO THE PRIOR PAYMENT IN FULL IN CASH OF ALL SENIOR DEBT
(WHETHER OUTSTANDING ON THE DATE HEREOF OR HEREAFTER CREATED, INCURRED, ASSUMED
OR GUARANTEED), AND THAT THE SUBORDINATION IS FOR THE BENEFIT OF THE HOLDERS OF
SENIOR DEBT.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
UPON ANY PAYMENT OR DISTRIBUTION TO CREDITORS OF THE COMPANY IN A
LIQUIDATION OR DISSOLUTION OF THE COMPANY OR IN A BANKRUPTCY, REORGANIZATION,
INSOLVENCY, RECEIVERSHIP OR SIMILAR PROCEEDING RELATING TO THE COMPANY OR ITS
PROPERTY, IN AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR ANY MARSHALING OF THE
COMPANY'S ASSETS AND LIABILITIES:
(I) HOLDERS OF SENIOR DEBT SHALL BE ENTITLED TO RECEIVE PAYMENT
IN FULL IN CASH OF ALL OBLIGATIONS DUE IN RESPECT OF SUCH SENIOR DEBT
(INCLUDING INTEREST AFTER THE COMMENCEMENT OF ANY SUCH PROCEEDING AT THE
RATE SPECIFIED IN THE APPLICABLE SENIOR DEBT, WHETHER OR NOT SUCH INTEREST
WOULD BE AN ALLOWED CLAIM IN SUCH PROCEEDING) BEFORE HOLDERS OF THE NOTES
SHALL BE ENTITLED TO RECEIVE ANY PAYMENT WITH RESPECT TO THE NOTES (EXCEPT
THAT HOLDERS MAY RECEIVE (A) PERMITTED JUNIOR SECURITIES AND (B) PAYMENTS
AND OTHER DISTRIBUTIONS MADE FROM ANY DEFEASANCE TRUST CREATED PURSUANT TO
SECTION 8.01 HEREOF IF THE FUNDING OF SUCH TRUST IS PERMITTED UNDER
SECTION 8.04); AND
(II) UNTIL ALL OBLIGATIONS WITH RESPECT TO SENIOR DEBT (AS
PROVIDED IN CLAUSE (I) ABOVE) ARE PAID IN FULL IN CASH, ANY PAYMENT OR
DISTRIBUTION TO WHICH HOLDERS WOULD BE ENTITLED BUT FOR THIS ARTICLE 10
SHALL BE MADE TO HOLDERS OF SENIOR DEBT (EXCEPT THAT HOLDERS OF NOTES MAY
RECEIVE (A) PERMITTED JUNIOR SECURITIES AND (B) PAYMENTS AND OTHER
DISTRIBUTIONS MADE FROM ANY DEFEASANCE TRUST CREATED PURSUANT TO SECTION
8.01 HEREOF IF THE FUNDING OF SUCH TRUST IS PERMITTED UNDER SECTION 8.04),
AS THEIR INTERESTS MAY APPEAR.
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
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(A) THE COMPANY MAY NOT MAKE ANY PAYMENT OR DISTRIBUTION (WHETHER BY
PURCHASE, REDEMPTION, DEFEASANCE OR OTHERWISE) IN RESPECT OF OBLIGATIONS WITH
RESPECT TO THE NOTES AND MAY NOT ACQUIRE FROM THE TRUSTEE OR ANY HOLDER ANY
NOTES FOR CASH OR PROPERTY (OTHER THAN (A) PERMITTED JUNIOR SECURITIES AND (B)
PAYMENTS AND OTHER DISTRIBUTIONS MADE FROM ANY DEFEASANCE TRUST CREATED PURSUANT
TO SECTION 8.01 HEREOF IF THE FUNDING OF SUCH TRUST IS PERMITTED UNDER SECTION
8.04), UNTIL ALL PRINCIPAL AND OTHER OBLIGATIONS WITH RESPECT TO THE SENIOR DEBT
HAVE BEEN PAID IN FULL IN CASH IF:
(I) A DEFAULT IN THE PAYMENT OF ANY PRINCIPAL OR OTHER
OBLIGATIONS WITH RESPECT TO DESIGNATED SENIOR DEBT OCCURS AND IS
CONTINUING; OR
(II) A DEFAULT, OTHER THAN A PAYMENT DEFAULT, ON DESIGNATED
SENIOR DEBT OCCURS AND IS CONTINUING THAT THEN PERMITS HOLDERS OF THE
DESIGNATED SENIOR DEBT TO ACCELERATE ITS MATURITY AND THE TRUSTEE RECEIVES
A NOTICE OF THE DEFAULT (A "PAYMENT BLOCKAGE NOTICE") FROM A PERSON WHO
MAY GIVE IT PURSUANT TO SECTION 10.11 HEREOF. IF THE TRUSTEE RECEIVES ANY
SUCH PAYMENT BLOCKAGE NOTICE, NO SUBSEQUENT PAYMENT BLOCKAGE NOTICE SHALL
BE EFFECTIVE FOR PURPOSES OF THIS SECTION UNLESS AND UNTIL AT LEAST 360
DAYS SHALL HAVE ELAPSED SINCE THE EFFECTIVENESS OF THE IMMEDIATELY PRIOR
PAYMENT BLOCKAGE NOTICE. NO NONPAYMENT DEFAULT THAT EXISTED OR WAS
CONTINUING ON THE DATE OF DELIVERY OF ANY PAYMENT BLOCKAGE NOTICE TO THE
TRUSTEE SHALL BE, OR BE MADE, THE BASIS FOR A SUBSEQUENT PAYMENT BLOCKAGE
NOTICE UNLESS SUCH DEFAULT SHALL HAVE BEEN WAIVED FOR A PERIOD OF NOT LESS
THAN 90 DAYS.
(B) THE COMPANY MAY AND SHALL RESUME PAYMENTS ON AND DISTRIBUTIONS IN
RESPECT OF THE NOTES:
(I) IN THE CASE OF A PAYMENT DEFAULT, THE DATE UPON WHICH THE
DEFAULT IS CURED OR WAIVED, OR
(II) IN THE CASE OF A NONPAYMENT DEFAULT, THE EARLIER OF THE
DATE ON WHICH SUCH NONPAYMENT DEFAULT IS CURED OR WAIVED OR 179 DAYS AFTER
THE DATE ON WHICH THE APPLICABLE PAYMENT BLOCKAGE NOTICE IS RECEIVED
UNLESS THE MATURITY OF SUCH DESIGNATED SENIOR DEBT HAS BEEN ACCELERATED,
IF THIS ARTICLE 10 OTHERWISE PERMITS THE PAYMENT, DISTRIBUTION OR
ACQUISITION AT THE TIME OF SUCH PAYMENT OR ACQUISITION.
SECTION 10.04. ACCELERATION OF SECURITIES.
IF PAYMENT OF THE SECURITIES IS ACCELERATED BECAUSE OF AN EVENT OF
DEFAULT, THE COMPANY SHALL PROMPTLY NOTIFY HOLDERS OF SENIOR DEBT OF THE
ACCELERATION.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
IN THE EVENT THAT THE TRUSTEE OR ANY HOLDER RECEIVES ANY PAYMENT OF
OR DISTRIBUTION WITH RESPECT TO ANY OBLIGATIONS WITH RESPECT TO THE NOTES
(EXCEPT IN PERMITTED JUNIOR SECURITIES IN THE CIRCUMSTANCES PERMITTED IN SECTION
10.02 OR FROM THE TRUST DESCRIBED IN SECTION 8 HEREOF IF THE FUNDING OF SUCH
TRUST IS PERMITTED BY SECTION 8.04) AT A TIME WHEN SUCH PAYMENT IS PROHIBITED BY
SECTION 10.02 OR 10.03 HEREOF, SUCH PAYMENT OR DISTRIBUTION SHALL BE HELD BY THE
TRUSTEE OR SUCH HOLDER, IN TRUST FOR THE BENEFIT OF, AND SHALL BE PAID FORTHWITH
OVER AND DELIVERED, UPON WRITTEN REQUEST, TO, THE HOLDERS OF SENIOR DEBT AS
THEIR INTERESTS
81
MAY APPEAR OR THEIR REPRESENTATIVE UNDER THE INDENTURE OR OTHER AGREEMENT (IF
ANY) PURSUANT TO WHICH SENIOR DEBT MAY HAVE BEEN ISSUED, AS THEIR RESPECTIVE
INTERESTS MAY APPEAR, FOR APPLICATION TO THE PAYMENT OF ALL OBLIGATIONS WITH
RESPECT TO SENIOR DEBT REMAINING UNPAID TO THE EXTENT NECESSARY TO PAY SUCH
OBLIGATIONS IN FULL IN ACCORDANCE WITH THEIR TERMS IN CASH, AFTER GIVING EFFECT
TO ANY CONCURRENT PAYMENT OR DISTRIBUTION TO OR FOR THE HOLDERS OF SENIOR DEBT.
WITH RESPECT TO THE HOLDERS OF SENIOR DEBT, THE TRUSTEE UNDERTAKES TO
PERFORM ONLY SUCH OBLIGATIONS ON THE PART OF THE TRUSTEE AS ARE SPECIFICALLY SET
FORTH IN THIS ARTICLE 10, AND NO IMPLIED COVENANTS OR OBLIGATIONS WITH RESPECT
TO THE HOLDERS OF SENIOR DEBT SHALL BE READ INTO THIS INDENTURE AGAINST THE
TRUSTEE. THE TRUSTEE SHALL NOT BE DEEMED TO OWE ANY FIDUCIARY DUTY TO THE
HOLDERS OF SENIOR DEBT, AND SHALL NOT BE LIABLE TO ANY SUCH HOLDERS IF THE
TRUSTEE SHALL PAY OVER OR DISTRIBUTE TO OR ON BEHALF OF HOLDERS OR THE COMPANY
OR ANY OTHER PERSON MONEY OR ASSETS TO WHICH ANY HOLDERS OF SENIOR DEBT SHALL BE
ENTITLED BY VIRTUE OF THIS ARTICLE 10, EXCEPT IF SUCH PAYMENT IS MADE AS A
RESULT OF THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE TRUSTEE.
SECTION 10.06. NOTICE BY COMPANY.
THE COMPANY SHALL PROMPTLY NOTIFY THE TRUSTEE AND THE PAYING AGENT OF
ANY FACTS KNOWN TO THE COMPANY THAT WOULD CAUSE A PAYMENT OF ANY OBLIGATIONS
WITH RESPECT TO THE NOTES TO VIOLATE THIS ARTICLE 10, BUT FAILURE TO GIVE SUCH
NOTICE SHALL NOT AFFECT THE SUBORDINATION OF THE NOTES TO THE SENIOR DEBT AS
PROVIDED IN THIS ARTICLE 10.
SECTION 10.07. SUBROGATION.
AFTER ALL SENIOR DEBT IS PAID IN FULL IN CASH AND UNTIL THE NOTES ARE
PAID IN FULL, HOLDERS OF NOTES SHALL BE SUBROGATED (EQUALLY AND RATABLY WITH ALL
OTHER INDEBTEDNESS PARI PASSU WITH THE NOTES) TO THE RIGHTS OF HOLDERS OF SENIOR
DEBT TO RECEIVE DISTRIBUTIONS APPLICABLE TO SENIOR DEBT TO THE EXTENT THAT
DISTRIBUTIONS OTHERWISE PAYABLE TO THE HOLDERS OF NOTES HAVE BEEN APPLIED TO THE
PAYMENT OF SENIOR DEBT. A DISTRIBUTION MADE UNDER THIS ARTICLE 10 TO HOLDERS OF
SENIOR DEBT THAT OTHERWISE WOULD HAVE BEEN MADE TO HOLDERS OF NOTES IS NOT, AS
BETWEEN THE COMPANY AND HOLDERS, A PAYMENT BY THE COMPANY ON THE NOTES.
SECTION 10.08. RELATIVE RIGHTS.
THIS ARTICLE 10 DEFINES THE RELATIVE RIGHTS OF HOLDERS OF NOTES AND
HOLDERS OF SENIOR DEBT. NOTHING IN THIS INDENTURE SHALL:
(I) IMPAIR, AS BETWEEN THE COMPANY AND HOLDERS OF NOTES, THE
OBLIGATION OF THE COMPANY, WHICH IS ABSOLUTE AND UNCONDITIONAL, TO PAY
PRINCIPAL OF AND INTEREST ON THE NOTES IN ACCORDANCE WITH THEIR TERMS;
(II) AFFECT THE RELATIVE RIGHTS OF HOLDERS OF NOTES AND
CREDITORS OF THE COMPANY OTHER THAN THEIR RIGHTS IN RELATION TO HOLDERS OF
SENIOR DEBT; OR
(III)PREVENT THE TRUSTEE OR ANY HOLDER OF NOTES FROM EXERCISING
ITS AVAILABLE REMEDIES UPON A DEFAULT OR EVENT OF DEFAULT, SUBJECT TO THE
RIGHTS OF HOLDERS AND OWNERS OF SENIOR DEBT TO RECEIVE DISTRIBUTIONS AND
PAYMENTS OTHERWISE PAYABLE TO HOLDERS OF NOTES.
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IF THE COMPANY FAILS BECAUSE OF THIS ARTICLE 10 TO PAY PRINCIPAL OF
OR INTEREST ON A NOTE ON THE DUE DATE, THE FAILURE IS STILL A DEFAULT OR EVENT
OF DEFAULT.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
NO RIGHT OF ANY HOLDER OF SENIOR DEBT TO ENFORCE THE SUBORDINATION OF
THE INDEBTEDNESS EVIDENCED BY THE NOTES SHALL BE IMPAIRED BY ANY ACT OR FAILURE
TO ACT BY THE COMPANY OR ANY HOLDER OR BY THE FAILURE OF THE COMPANY OR ANY
HOLDER TO COMPLY WITH THIS INDENTURE.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
WHENEVER A PAYMENT OR DISTRIBUTION IS TO BE MADE OR A NOTICE GIVEN TO
HOLDERS OF SENIOR DEBT, THE PAYMENT OR DISTRIBUTION MAY BE MADE AND THE NOTICE
GIVEN TO THEIR REPRESENTATIVE.
UPON ANY PAYMENT OR DISTRIBUTION OF ASSETS OF THE COMPANY REFERRED TO
IN THIS ARTICLE 10, THE TRUSTEE AND THE HOLDERS OF NOTES SHALL BE ENTITLED TO
RELY UPON ANY ORDER OR DECREE MADE BY ANY COURT OF COMPETENT JURISDICTION OR
UPON ANY CERTIFICATE OF SUCH REPRESENTATIVE OR OF THE LIQUIDATING TRUSTEE OR
AGENT OR OTHER PERSON MAKING ANY DISTRIBUTION TO THE TRUSTEE OR TO THE HOLDERS
OF NOTES FOR THE PURPOSE OF ASCERTAINING THE PERSONS ENTITLED TO PARTICIPATE IN
SUCH DISTRIBUTION, THE HOLDERS OF THE SENIOR DEBT AND OTHER INDEBTEDNESS OF THE
COMPANY, THE AMOUNT THEREOF OR PAYABLE THEREON, THE AMOUNT OR AMOUNTS PAID OR
DISTRIBUTED THEREON AND ALL OTHER FACTS PERTINENT THERETO OR TO THIS ARTICLE 10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
NOTWITHSTANDING THE PROVISIONS OF THIS ARTICLE 10 OR ANY OTHER
PROVISION OF THIS INDENTURE, THE TRUSTEE SHALL NOT BE CHARGED WITH KNOWLEDGE OF
THE EXISTENCE OF ANY FACTS THAT WOULD PROHIBIT THE MAKING OF ANY PAYMENT OR
DISTRIBUTION BY THE TRUSTEE, AND THE TRUSTEE AND THE PAYING AGENT MAY CONTINUE
TO MAKE PAYMENTS ON THE NOTES, UNLESS THE TRUSTEE SHALL HAVE RECEIVED AT ITS
CORPORATE TRUST OFFICE AT LEAST TWO BUSINESS DAYS PRIOR TO THE DATE OF SUCH
PAYMENT WRITTEN NOTICE OF FACTS THAT WOULD CAUSE THE PAYMENT OF ANY OBLIGATIONS
WITH RESPECT TO THE NOTES TO VIOLATE THIS ARTICLE 10. ONLY THE COMPANY OR A
REPRESENTATIVE MAY GIVE THE NOTICE. NOTHING IN THIS ARTICLE 10 SHALL IMPAIR THE
CLAIMS OF, OR PAYMENTS TO, THE TRUSTEE UNDER OR PURSUANT TO SECTION 7.07 HEREOF.
THE TRUSTEE IN ITS INDIVIDUAL OR ANY OTHER CAPACITY MAY HOLD SENIOR
DEBT WITH THE SAME RIGHTS IT WOULD HAVE IF IT WERE NOT TRUSTEE. ANY AGENT MAY DO
THE SAME WITH LIKE RIGHTS. EACH PAYING AGENT SHALL BE SUBJECT TO THE OBLIGATIONS
OF THE TRUSTEE UNDER THIS ARTICLE 10.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
EACH HOLDER OF NOTES, BY THE HOLDER'S ACCEPTANCE THEREOF, AUTHORIZES
AND DIRECTS THE TRUSTEE ON SUCH HOLDER'S BEHALF TO TAKE SUCH ACTION AS MAY BE
NECESSARY OR APPROPRIATE TO EFFECTUATE THE SUBORDINATION AS PROVIDED IN THIS
ARTICLE 10, AND APPOINTS THE TRUSTEE TO ACT AS SUCH HOLDER'S ATTORNEY-IN-FACT
FOR ANY AND ALL SUCH PURPOSES. IF THE TRUSTEE DOES NOT FILE A PROPER PROOF OF
CLAIM OR PROOF OF DEBT IN THE FORM REQUIRED IN ANY PROCEEDING REFERRED TO IN
SECTION 6.09 HEREOF AT LEAST 30 DAYS BEFORE THE EXPIRATION OF THE TIME TO FILE
SUCH CLAIM, THE REPRESENTATIVE OF THE HOLDERS IS HEREBY AUTHORIZED TO FILE AN
APPROPRIATE CLAIM FOR AND
83
ON BEHALF OF THE HOLDERS OF THE NOTES.
SECTION 10.13. AMENDMENTS.
THE PROVISIONS OF THIS ARTICLE 10 SHALL NOT BE AMENDED OR MODIFIED
WITHOUT THE WRITTEN CONSENT OF THE HOLDERS OF ALL SENIOR DEBT.
ARTICLE 11 SUBSIDIARY GUARANTIES
SECTION 11.01. GUARANTY.
SUBJECT TO THIS ARTICLE 11, EACH OF THE SUBSIDIARY GUARANTORS HEREBY,
JOINTLY AND SEVERALLY, UNCONDITIONALLY GUARANTIES 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 HEREUNDER OR THEREUNDER, THAT: (A)
THE PRINCIPAL OF AND INTEREST ON THE NOTES SHALL BE PROMPTLY PAID IN FULL WHEN
DUE, WHETHER AT MATURITY, BY ACCELERATION, REDEMPTION OR OTHERWISE, AND INTEREST
ON THE OVERDUE PRINCIPAL OF AND INTEREST ON THE NOTES, IF ANY, IF LAWFUL, AND
ALL OTHER OBLIGATIONS OF THE COMPANY TO THE HOLDERS OR THE TRUSTEE HEREUNDER OR
THEREUNDER 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, THAT SAME
SHALL BE PROMPTLY PAID IN FULL WHEN DUE OR PERFORMED IN ACCORDANCE WITH THE
TERMS OF THE EXTENSION OR RENEWAL, WHETHER AT STATED MATURITY, BY ACCELERATION
OR OTHERWISE. FAILING PAYMENT WHEN DUE OF ANY AMOUNT SO GUARANTEED OR ANY
PERFORMANCE SO GUARANTEED FOR WHATEVER REASON, THE SUBSIDIARY GUARANTORS SHALL
BE JOINTLY AND SEVERALLY OBLIGATED TO PAY THE SAME IMMEDIATELY. EACH SUBSIDIARY
GUARANTOR AGREES THAT THIS IS A GUARANTY OF PAYMENT AND NOT A GUARANTY OF
COLLECTION.
THE SUBSIDIARY GUARANTORS HEREBY AGREE THAT THEIR 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, THE RECOVERY OF ANY JUDGMENT AGAINST THE
COMPANY, ANY ACTION TO ENFORCE THE SAME OR ANY OTHER CIRCUMSTANCE WHICH MIGHT
OTHERWISE CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OR DEFENSE OF A SUBSIDIARY
GUARANTOR. EACH SUBSIDIARY GUARANTOR HEREBY WAIVES 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 COVENANT THAT THIS
SUBSIDIARY GUARANTY SHALL NOT BE DISCHARGED EXCEPT BY COMPLETE PERFORMANCE OF
THE OBLIGATIONS CONTAINED IN THE NOTES AND THIS INDENTURE.
IF ANY HOLDER OR THE TRUSTEE IS REQUIRED BY ANY COURT OR OTHERWISE TO
RETURN TO THE COMPANY, THE SUBSIDIARY GUARANTORS OR ANY CUSTODIAN, TRUSTEE,
LIQUIDATOR OR OTHER SIMILAR OFFICIAL ACTING IN RELATION TO EITHER THE COMPANY OR
THE SUBSIDIARY GUARANTORS, ANY AMOUNT PAID BY EITHER TO THE TRUSTEE OR SUCH
HOLDER, THIS SUBSIDIARY GUARANTY, TO THE EXTENT THERETOFORE DISCHARGED, SHALL BE
REINSTATED IN FULL FORCE AND EFFECT.
EACH SUBSIDIARY GUARANTOR AGREES THAT IT SHALL NOT BE ENTITLED TO ANY
RIGHT OF
84
SUBROGATION IN RELATION TO THE HOLDERS IN RESPECT OF ANY OBLIGATIONS GUARANTIED
HEREBY UNTIL PAYMENT IN FULL OF ALL OBLIGATIONS GUARANTEED HEREBY. EACH
SUBSIDIARY GUARANTOR FURTHER AGREES THAT, AS BETWEEN THE SUBSIDIARY GUARANTORS,
ON THE ONE HAND, AND THE HOLDERS AND THE TRUSTEE, ON THE OTHER HAND, (X) THE
MATURITY OF THE OBLIGATIONS GUARANTEED HEREBY MAY BE ACCELERATED AS PROVIDED IN
ARTICLE 6 HEREOF FOR THE PURPOSES OF THIS SUBSIDIARY GUARANTY, NOTWITHSTANDING
ANY STAY, INJUNCTION OR OTHER PROHIBITION PREVENTING SUCH ACCELERATION IN
RESPECT OF THE OBLIGATIONS GUARANTEED HEREBY, AND (Y) IN THE EVENT OF ANY
DECLARATION OF ACCELERATION OF SUCH OBLIGATIONS AS PROVIDED IN ARTICLE 6 HEREOF,
SUCH OBLIGATIONS (WHETHER OR NOT DUE AND PAYABLE) SHALL FORTHWITH BECOME DUE AND
PAYABLE BY THE SUBSIDIARY GUARANTORS FOR THE PURPOSE OF THIS SUBSIDIARY
GUARANTY. THE SUBSIDIARY GUARANTORS SHALL HAVE THE RIGHT TO SEEK CONTRIBUTION
FROM ANY NON-PAYING SUBSIDIARY GUARANTOR SO LONG AS THE EXERCISE OF SUCH RIGHT
DOES NOT IMPAIR THE RIGHTS OF THE HOLDERS UNDER THE SUBSIDIARY GUARANTY.
SECTION 11.02. SUBORDINATION OF SUBSIDIARY GUARANTY.
THE OBLIGATIONS OF EACH SUBSIDIARY GUARANTOR UNDER ITS SUBSIDIARY
GUARANTY PURSUANT TO THIS ARTICLE 11 OR ITS SUBSIDIARY GUARANTY IN THE FORM OF
EXHIBIT F HERETO SHALL BE JUNIOR AND SUBORDINATED IN RIGHT OR PAYMENT TO THE
PRIOR PAYMENT IN FULL IN CASH OF SENIOR DEBT (INCLUDING INTEREST AFTER THE
COMMENCEMENT OF ANY PROCEEDING OF THE TYPE DESCRIBED IN SECTION 10.02 WITH
RESPECT TO SUCH SUBSIDIARY GUARANTOR AT THE RATE SPECIFIED IN THE APPLICABLE
SENIOR DEBT, WHETHER OR NOT SUCH INTEREST WOULD BE AN ALLOWED CLAIM IN SUCH
PROCEEDING) OF SUCH SUBSIDIARY GUARANTOR ON THE SAME BASIS AS THE NOTES ARE
JUNIOR AND SUBORDINATED TO SENIOR DEBT OF THE COMPANY MUTADIS MUTANDIS AND
INCLUDING, WITHOUT LIMITATION, WITH REFERENCES TO THE COMPANY IN SECTION 10.02
BEING DEEMED TO BE REFERENCES TO SUCH SUBSIDIARY GUARANTORS FOR PURPOSES OF THIS
SECTION 11.02. FOR THE PURPOSES OF THE FOREGOING SENTENCE, THE TRUSTEE AND THE
HOLDERS SHALL HAVE THE RIGHT TO RECEIVE AND/OR RETAIN PAYMENTS BY ANY OF THE
SUBSIDIARY GUARANTORS ONLY AT SUCH TIMES AS THEY MAY RECEIVE AND/OR RETAIN
PAYMENTS IN RESPECT OF THE NOTES PURSUANT TO THIS INDENTURE, INCLUDING ARTICLE
10 HEREOF.
SECTION 11.03. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY.
EACH SUBSIDIARY GUARANTOR, AND BY ITS ACCEPTANCE OF NOTES, EACH
HOLDER, HEREBY CONFIRMS THAT IT IS THE INTENTION OF ALL SUCH PARTIES THAT THE
SUBSIDIARY GUARANTY OF SUCH SUBSIDIARY GUARANTOR NOT CONSTITUTE A FRAUDULENT
TRANSFER OR CONVEYANCE FOR PURPOSES OF BANKRUPTCY LAW, THE UNIFORM FRAUDULENT
CONVEYANCE ACT, THE UNIFORM FRAUDULENT TRANSFER ACT OR ANY SIMILAR FEDERAL OR
STATE LAW TO THE EXTENT APPLICABLE TO ANY SUBSIDIARY GUARANTY. TO EFFECTUATE THE
FOREGOING INTENTION, THE TRUSTEE, THE HOLDERS AND THE SUBSIDIARY GUARANTORS
HEREBY IRREVOCABLY AGREE THAT THE OBLIGATIONS OF SUCH SUBSIDIARY GUARANTOR
SHALL, AFTER GIVING EFFECT TO SUCH MAXIMUM AMOUNT AND ALL OTHER CONTINGENT AND
FIXED LIABILITIES OF SUCH SUBSIDIARY GUARANTOR THAT ARE RELEVANT UNDER SUCH
LAWS, AND AFTER GIVING EFFECT TO ANY COLLECTIONS FROM, RIGHTS TO RECEIVE
CONTRIBUTION FROM OR PAYMENTS MADE BY OR ON BEHALF OF ANY OTHER SUBSIDIARY
GUARANTOR IN RESPECT OF THE OBLIGATIONS OF SUCH OTHER SUBSIDIARY GUARANTOR UNDER
THIS ARTICLE 11, RESULT IN THE OBLIGATIONS OF SUCH SUBSIDIARY GUARANTOR UNDER
ITS SUBSIDIARY GUARANTY NOT CONSTITUTING A FRAUDULENT TRANSFER OR CONVEYANCE.
SECTION 11.04. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTY.
TO EVIDENCE ITS SUBSIDIARY GUARANTY SET FORTH IN SECTION 11.01, EACH
SUBSIDIARY
85
GUARANTOR HEREBY AGREES THAT A NOTATION OF SUCH SUBSIDIARY GUARANTY
SUBSTANTIALLY IN THE FORM INCLUDED IN EXHIBIT E SHALL BE ENDORSED BY AN OFFICER
OF SUCH SUBSIDIARY GUARANTOR ON EACH NOTE AUTHENTICATED AND DELIVERED BY THE
TRUSTEE AND THAT THIS INDENTURE SHALL BE EXECUTED ON BEHALF OF SUCH SUBSIDIARY
GUARANTOR BY ITS PRESIDENT OR ONE OF ITS VICE PRESIDENTS.
EACH SUBSIDIARY GUARANTOR HEREBY AGREES THAT ITS SUBSIDIARY GUARANTY
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 SUBSIDIARY GUARANTY.
IF AN OFFICER WHOSE SIGNATURE IS ON THIS INDENTURE OR ON THE
SUBSIDIARY GUARANTY NO LONGER HOLDS THAT OFFICE AT THE TIME THE TRUSTEE
AUTHENTICATES THE NOTE ON WHICH A SUBSIDIARY GUARANTY IS ENDORSED, THE
SUBSIDIARY GUARANTY SHALL BE VALID NEVERTHELESS
THE DELIVERY OF ANY NOTE BY THE TRUSTEE, AFTER THE AUTHENTICATION
THEREOF HEREUNDER, SHALL CONSTITUTE DUE DELIVERY OF THE SUBSIDIARY GUARANTY SET
FORTH IN THIS INDENTURE ON BEHALF OF THE SUBSIDIARY GUARANTORS.
IN THE EVENT THAT THE COMPANY CREATES OR ACQUIRES ANY NEW
SUBSIDIARIES SUBSEQUENT TO THE DATE OF THIS INDENTURE, IF REQUIRED BY SECTION
4.19 HEREOF, THE COMPANY SHALL CAUSE SUCH SUBSIDIARIES TO EXECUTE SUPPLEMENTAL
INDENTURES TO THIS INDENTURE AND SUBSIDIARY GUARANTIES IN ACCORDANCE WITH
SECTION 4.19 HEREOF AND THIS ARTICLE 11, TO THE EXTENT APPLICABLE.
SECTION 11.05. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.06, NO SUBSIDIARY
GUARANTOR MAY SELL OR OTHERWISE DISPOSE OF ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS TO, OR CONSOLIDATE WITH OR MERGE WITH OR INTO (WHETHER OR NOT SUCH
SUBSIDIARY GUARANTOR IS THE SURVIVING PERSON) ANOTHER PERSON, OTHER THAN THE
COMPANY OR ANOTHER SUBSIDIARY GUARANTOR, UNLESS:
(A) EITHER (I) SUBJECT TO SECTION 11.06 HEREOF, THE PERSON ACQUIRING
THE PROPERTY ON ANY SUCH SALE OR DISPOSITION OR THE PERSON FORMED BY OR
SURVIVING ANY SUCH CONSOLIDATION OR MERGER (IF OTHER THAN A SUBSIDIARY GUARANTOR
OR THE COMPANY) UNCONDITIONALLY ASSUMES ALL THE OBLIGATIONS OF SUCH SUBSIDIARY
GUARANTOR UNDER THE INDENTURE AND THE SUBSIDIARY GUARANTY AND THE REGISTRATION
RIGHTS AGREEMENT PURSUANT TO A SUPPLEMENTAL INDENTURE AND APPROPRIATE COLLATERAL
DOCUMENTS SATISFACTORY TO THE TRUSTEE OR (II) THE NET PROCEEDS OF SUCH SALE OR
DISPOSITION ARE APPLIED IN ACCORDANCE WITH SECTION 4.10 HEREOF; AND
(B) IMMEDIATELY AFTER GIVING EFFECT TO SUCH TRANSACTION, NO DEFAULT
OR EVENT OF DEFAULT EXISTS.
IN CASE OF ANY SUCH CONSOLIDATION, MERGER, SALE OR CONVEYANCE AND
UPON THE ASSUMPTION BY THE SUCCESSOR PERSON, BY SUPPLEMENTAL INDENTURE, EXECUTED
AND DELIVERED TO THE TRUSTEE AND SATISFACTORY IN FORM TO THE TRUSTEE, OF THE
SUBSIDIARY GUARANTEE ENDORSED UPON THE NOTES AND THE DUE AND PUNCTUAL
PERFORMANCE OF ALL OF THE COVENANTS AND CONDITIONS OF THIS INDENTURE TO BE
PERFORMED BY THE SUBSIDIARY GUARANTOR, SUCH SUCCESSOR PERSON SHALL SUCCEED TO
AND BE SUBSTITUTED FOR THE SUBSIDIARY GUARANTOR WITH THE SAME EFFECT AS IF IT
HAD BEEN NAMED HEREIN AS A SUBSIDIARY GUARANTOR. SUCH SUCCESSOR PERSON THEREUPON
MAY CAUSE TO BE SIGNED ANY OR ALL OF THE SUBSIDIARY GUARANTEES TO BE ENDORSED
UPON ALL OF THE NOTES ISSUABLE HEREUNDER WHICH THERETOFORE SHALL NOT HAVE BEEN
SIGNED BY
86
THE COMPANY AND DELIVERED TO THE TRUSTEE. ALL THE SUBSIDIARY GUARANTEES SO
ISSUED SHALL IN ALL RESPECTS HAVE THE SAME LEGAL RANK AND BENEFIT UNDER THIS
INDENTURE AS THE SUBSIDIARY GUARANTEES THERETOFORE AND THEREAFTER ISSUED IN
ACCORDANCE WITH THE TERMS OF THIS INDENTURE AS THOUGH ALL OF SUCH SUBSIDIARY
GUARANTEES HAD BEEN ISSUED AT THE DATE OF THE EXECUTION HEREOF.
EXCEPT AS SET FORTH IN ARTICLES 4 AND 5 HEREOF, AND NOTWITHSTANDING
CLAUSES (A) AND (B) ABOVE, NOTHING CONTAINED IN THIS INDENTURE OR IN ANY OF THE
NOTES SHALL PREVENT ANY CONSOLIDATION OR MERGER OF A SUBSIDIARY GUARANTOR WITH
OR INTO THE COMPANY OR ANOTHER SUBSIDIARY GUARANTOR, OR SHALL PREVENT ANY SALE
OR CONVEYANCE OF THE PROPERTY OF A SUBSIDIARY GUARANTOR AS AN ENTIRETY OR
SUBSTANTIALLY AS AN ENTIRETY TO THE COMPANY OR ANOTHER SUBSIDIARY GUARANTOR.
SECTION 11.06. RELEASES FOLLOWING SALE OF ASSETS.
IF THE COMPANY PROPERLY DESIGNATES ANY RESTRICTED SUBSIDIARY THAT IS
A SUBSIDIARY GUARANTOR AS AN UNRESTRICTED SUBSIDIARY OR IN THE EVENT OF A SALE
OR OTHER DISPOSITION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF ANY SUBSIDIARY
GUARANTOR, BY WAY OF MERGER, CONSOLIDATION OR OTHERWISE, OR A SALE OR OTHER
DISPOSITION OF ALL OF THE CAPITAL STOCK OF ANY SUBSIDIARY GUARANTOR, IN EACH
CASE TO A PERSON THAT IS NOT (EITHER BEFORE OR AFTER GIVING EFFECT TO SUCH
TRANSACTIONS) A RESTRICTED SUBSIDIARY OF THE COMPANY, THEN SUCH SUBSIDIARY
GUARANTOR (IN THE EVENT OF A SALE OR OTHER DISPOSITION, BY WAY OF MERGER,
CONSOLIDATION OR OTHERWISE, OF ALL OF THE CAPITAL STOCK OF SUCH SUBSIDIARY
GUARANTOR) OR THE CORPORATION ACQUIRING THE PROPERTY (IN THE EVENT OF A SALE OR
OTHER DISPOSITION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF SUCH SUBSIDIARY
GUARANTOR) SHALL BE RELEASED AND RELIEVED OF ANY OBLIGATIONS UNDER ITS
SUBSIDIARY GUARANTY; PROVIDED THAT THE NET PROCEEDS OF SUCH SALE OR OTHER
DISPOSITION ARE APPLIED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS
INDENTURE, INCLUDING WITHOUT LIMITATION SECTION 4.10 HEREOF. UPON DELIVERY BY
THE COMPANY TO THE TRUSTEE OF AN OFFICERS' CERTIFICATE AND AN OPINION OF COUNSEL
TO THE EFFECT THAT SUCH SALE OR OTHER DISPOSITION WAS MADE BY THE COMPANY IN
ACCORDANCE WITH THE PROVISIONS OF THIS INDENTURE, INCLUDING WITHOUT LIMITATION
SECTION 4.10 HEREOF, THE TRUSTEE SHALL EXECUTE ANY DOCUMENTS REASONABLY REQUIRED
IN ORDER TO EVIDENCE THE RELEASE OF ANY SUBSIDIARY GUARANTOR FROM ITS
OBLIGATIONS UNDER ITS SUBSIDIARY GUARANTY.
ANY SUBSIDIARY GUARANTOR NOT RELEASED FROM ITS OBLIGATIONS UNDER ITS
SUBSIDIARY GUARANTY SHALL REMAIN LIABLE FOR THE FULL AMOUNT OF PRINCIPAL OF AND
INTEREST ON THE NOTES AND FOR THE OTHER OBLIGATIONS OF ANY SUBSIDIARY GUARANTOR
UNDER THIS INDENTURE AS PROVIDED IN THIS ARTICLE 11.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
IF ANY PROVISION OF THIS INDENTURE LIMITS, QUALIFIES OR CONFLICTS
WITH THE DUTIES IMPOSED BY TIA SECTION 318(C), THE IMPOSED DUTIES SHALL CONTROL.
SECTION 12.02. NOTICES.
ANY NOTICE OR COMMUNICATION BY THE COMPANY, ANY SUBSIDIARY GUARANTOR
OR THE
87
TRUSTEE TO THE OTHERS IS DULY GIVEN IF IN WRITING AND DELIVERED IN PERSON OR
MAILED BY FIRST CLASS MAIL (REGISTERED OR CERTIFIED, RETURN RECEIPT REQUESTED),
TELEX, TELECOPIER OR OVERNIGHT AIR COURIER GUARANTEEING NEXT DAY DELIVERY, TO
THE OTHERS' ADDRESS:
IF TO THE COMPANY :
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
0000 XXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
TELECOPIER NO: (000) 000-0000
ATTENTION: CHIEF FINANCIAL OFFICER
WITH A COPY TO:
XXXXXXXX & XXXXX
000 XXXX XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX 00000
TELECOPIER NO.: (000) 000-0000
ATTENTION: XXXXXX X. XXXXXXX, P.C.
IF TO THE TRUSTEE:
U.S. BANK TRUST NATIONAL ASSOCIATION
000 XXXX 0XX XXXXXX
XX. XXXX, XXXXXXXXX 00000
TELECOPIER NO.: (000) 000-0000
ATTENTION: CORPORATE TRUST DEPARTMENT
THE COMPANY OR THE TRUSTEE, BY NOTICE TO THE OTHERS MAY DESIGNATE
ADDITIONAL OR DIFFERENT ADDRESSES FOR SUBSEQUENT NOTICES OR COMMUNICATIONS.
ALL NOTICES AND COMMUNICATIONS (OTHER THAN THOSE SENT TO HOLDERS)
SHALL BE DEEMED TO HAVE BEEN DULY GIVEN: AT THE TIME DELIVERED BY HAND, IF
PERSONALLY DELIVERED; FIVE BUSINESS DAYS AFTER BEING DEPOSITED IN THE MAIL,
POSTAGE PREPAID, IF MAILED; WHEN ANSWERED BACK, IF TELEXED; WHEN RECEIPT
ACKNOWLEDGED, IF TELECOPIED; AND THE NEXT BUSINESS DAY AFTER TIMELY DELIVERY TO
THE COURIER, IF SENT BY OVERNIGHT AIR COURIER GUARANTEEING NEXT DAY DELIVERY.
88
ANY NOTICE OR COMMUNICATION TO A HOLDER SHALL BE MAILED BY FIRST
CLASS MAIL, CERTIFIED OR REGISTERED, RETURN RECEIPT REQUESTED, OR BY OVERNIGHT
AIR COURIER GUARANTEEING NEXT DAY DELIVERY TO ITS ADDRESS SHOWN ON THE REGISTER
KEPT BY THE REGISTRAR. ANY NOTICE OR COMMUNICATION SHALL ALSO BE SO MAILED TO
ANY PERSON DESCRIBED IN TIA SECTION 313(C), TO THE EXTENT REQUIRED BY THE TIA.
FAILURE TO MAIL A NOTICE OR COMMUNICATION TO A HOLDER OR ANY DEFECT IN IT SHALL
NOT AFFECT ITS SUFFICIENCY WITH RESPECT TO OTHER HOLDERS.
IF A NOTICE OR COMMUNICATION IS MAILED IN THE MANNER PROVIDED ABOVE
WITHIN THE TIME PRESCRIBED, IT IS DULY GIVEN, WHETHER OR NOT THE ADDRESSEE
RECEIVES IT.
IF THE COMPANY MAILS A NOTICE OR COMMUNICATION TO HOLDERS, IT SHALL
MAIL A COPY TO THE TRUSTEE AND EACH AGENT AT THE SAME TIME.
SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
HOLDERS MAY COMMUNICATE PURSUANT TO TIA SECTION 312(B) WITH OTHER
HOLDERS WITH RESPECT TO THEIR RIGHtS UNDER THIS INDENTURE OR THE NOTES. THE
COMPANY, THE TRUSTEE, THE REGISTRAR AND ANYONE ELSE SHALL HAVE THE PROTECTION
OF TIA SECTION 312(C).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
UPON ANY REQUEST OR APPLICATION BY THE COMPANY TO THE TRUSTEE TO TAKE
ANY ACTION UNDER THIS INDENTURE, THE COMPANY SHALL FURNISH TO THE TRUSTEE:
(A) AN OFFICERS' CERTIFICATE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE TRUSTEE (WHICH SHALL INCLUDE THE STATEMENTS SET FORTH IN
SECTION 12.05 HEREOF) STATING THAT, IN THE OPINION OF THE SIGNERS, ALL
CONDITIONS PRECEDENT AND COVENANTS, IF ANY, PROVIDED FOR IN THIS INDENTURE
RELATING TO THE PROPOSED ACTION HAVE BEEN SATISFIED; AND
(B) AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE TRUSTEE (WHICH SHALL INCLUDE THE STATEMENTS SET FORTH IN
SECTION 12.05 HEREOF) STATING THAT, IN THE OPINION OF SUCH COUNSEL, ALL SUCH
CONDITIONS PRECEDENT AND COVENANTS HAVE BEEN SATISFIED.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
EACH CERTIFICATE OR OPINION WITH RESPECT TO COMPLIANCE WITH A
CONDITION OR COVENANT PROVIDED FOR IN THIS INDENTURE (OTHER THAN A
CERTIFICATE PROVIDED PURSUANT TO TIA SECTION 314(A)(4)) SHALL COMPLY WITH THE
PROVISIONS OF TIA SECTION 314(E) AND SHALL INCLUDE:
(A) A STATEMENT THAT THE PERSON MAKING SUCH CERTIFICATE OR OPINION
HAS READ SUCH COVENANT OR CONDITION;
(B) A BRIEF STATEMENT AS TO THE NATURE AND SCOPE OF THE EXAMINATION
OR INVESTIGATION UPON WHICH THE STATEMENTS OR OPINIONS CONTAINED IN SUCH
CERTIFICATE OR OPINION ARE BASED;
(C) A STATEMENT THAT, IN THE OPINION OF SUCH PERSON, HE OR SHE HAS
MADE SUCH EXAMINATION OR INVESTIGATION AS IS NECESSARY TO ENABLE HIM TO EXPRESS
AN INFORMED OPINION AS TO WHETHER OR NOT SUCH COVENANT OR CONDITION HAS BEEN
SATISFIED; AND
89
(D) A STATEMENT AS TO WHETHER OR NOT, IN THE OPINION OF SUCH PERSON,
SUCH CONDITION OR COVENANT HAS BEEN SATISFIED.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
THE TRUSTEE MAY MAKE REASONABLE RULES FOR ACTION BY OR AT A MEETING
OF HOLDERS. THE REGISTRAR OR PAYING AGENT MAY MAKE REASONABLE RULES AND SET
REASONABLE REQUIREMENTS FOR ITS FUNCTIONS.
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
NO DIRECTOR, OFFICER, EMPLOYEE, INCORPORATOR OR STOCKHOLDER OF THE
COMPANY OR ANY SUBSIDIARY GUARANTOR, AS SUCH, SHALL HAVE ANY LIABILITY FOR ANY
OBLIGATIONS OF THE COMPANY OR THE SUBSIDIARY GUARANTORS UNDER THE NOTES, THIS
INDENTURE OR THE SUBSIDIARY GUARANTIES OR FOR ANY CLAIM BASED ON, IN RESPECT OF,
OR BY REASON OF, SUCH OBLIGATIONS OR THEIR CREATION. EACH HOLDER OF NOTES BY
ACCEPTING A NOTE WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER AND RELEASE
ARE PART OF THE CONSIDERATION FOR ISSUANCE OF THE NOTES.
SECTION 12.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTIES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
THIS INDENTURE MAY NOT BE USED TO INTERPRET ANY OTHER INDENTURE, LOAN
OR DEBT AGREEMENT OF THE COMPANY OR ITS SUBSIDIARIES OR OF ANY OTHER PERSON. ANY
SUCH INDENTURE, LOAN OR DEBT AGREEMENT MAY NOT BE USED TO INTERPRET THIS
INDENTURE.
SECTION 12.10. 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. ALL AGREEMENTS OF EACH SUBSIDIARY GUARANTOR IN THIS INDENTURE
SHALL BIND ITS SUCCESSORS, EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.05.
SECTION 12.11. SEVERABILITY.
IN CASE ANY PROVISION IN THIS INDENTURE OR IN THE NOTES SHALL BE
INVALID, ILLEGAL OR UNENFORCEABLE, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF
THE REMAINING PROVISIONS SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY.
SECTION 12.12. COUNTERPART ORIGINALS.
THE PARTIES MAY SIGN ANY NUMBER OF COPIES OF THIS INDENTURE. EACH
SIGNED COPY SHALL BE AN ORIGINAL, BUT ALL OF THEM TOGETHER REPRESENT THE SAME
AGREEMENT.
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
90
THE TABLE OF CONTENTS, CROSS-REFERENCE TABLE AND HEADINGS OF THE
ARTICLES AND SECTIONS OF THIS INDENTURE HAVE BEEN INSERTED FOR CONVENIENCE OF
REFERENCE ONLY, ARE NOT TO BE CONSIDERED A PART OF THIS INDENTURE AND SHALL IN
NO WAY MODIFY OR RESTRICT ANY OF THE TERMS OR PROVISIONS HEREOF.
[SIGNATURES ON FOLLOWING PAGE]
91
SIGNATURES
DATED AS OF MAY 28, 1999
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
BY: /s/ XXXXXXX X. XXXXXX
-------------------------------------
XXXXXXX X. XXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATTEST: /S/ XXXX X. XXXXXX
XXXX X. XXXXXX
SECRETARY
FRENCH HOLDINGS, INC.
BY: /s/ XXXXXXX X. XXXXXX
-------------------------------------
XXXXXXX X. XXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATTEST: /S/ XXXX X. XXXXXX
XXXX X. XXXXXX
SECRETARY
X.X. XXXXXX CORPORATION
BY: /s/ XXXXXXX X. XXXXXX
-------------------------------------
XXXXXXX X. XXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATTEST: /S/ XXXX X. XXXXXX
XXXX X. XXXXXX
SECRETARY
ALLOTECH INTERNATIONAL, INC.
BY: /s/ XXXXXXX X. XXXXXX
-------------------------------------
S-1
XXXXXXX X. XXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATTEST: /S/ XXXX X. XXXXXX
XXXX X. XXXXXX
SECRETARY
U. S. BANK TRUST NATIONAL ASSOCIATION
BY: /s/ XXXXX XXXX
-------------------------------------
XXXXX XXXX
VICE PRESIDENT
ATTEST: /S/ X. XXXXXX
NAME:
TITLE:
S-2
EXHIBIT A1
[FACE OF RULE 144A GLOBAL NOTE]
CUSIP ___________
11 1/2% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTES DUE 2009
NO. __ $___________
X. X. XXXXXX AUTOMOTIVE CASTINGS, INC.
PROMISES TO PAY TO
OR REGISTERED ASSIGNS,
THE PRINCIPAL SUM OF
DOLLARS ON JUNE 1, 2009.
INTEREST PAYMENT DATES: JUNE 1 AND DECEMBER 1
RECORD DATES: MAY 15 AND NOVEMBER 15
DATED: MAY 28, 1999
X. X. XXXXXX AUTOMOTIVE CASTINGS, INC.
BY:
NAME:
TITLE:
BY:
NAME:
TITLE:
THIS IS ONE OF THE NOTES REFERRED TO
IN THE WITHIN-MENTIONED INDENTURE:
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
BY: __________________________________
AUTHORIZED SIGNATORY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A1-1
[BACK OF RULE 144A GLOBAL NOTE]
11 1/2% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTES DUE 2009
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED, AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER
OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) (A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (B) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE NOTES (THE FORM OF SUCH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), OR (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT IN THE CASE OF A TRANSFER
PURSUANT TO CLAUSE (E) SUCH TRANSFER IS EFFECTED BY THE DELIVERY TO THE
TRANSFEREE OF DEFINITIVE SECURITIES REGISTERED IN ITS NAME (OR ITS NOMINEE'S
NAME) IN THE BOOKS MAINTAINED BY THE REGISTRAR, AND IS SUBJECT TO THE RECEIPT BY
THE REGISTRAR (AND THE COMPANY, IF IT SO REQUESTS) OF A CERTIFICATION OF THE
TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (II) TO THE COMPANY OR (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
A1-2
CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO
THEM IN THE INDENTURE REFERRED TO BELOW UNLESS OTHERWISE INDICATED.
1. INTEREST. X. X. XXXXXX AUTOMOTIVE CASTINGS, INC., A DELAWARE
CORPORATION (THE "COMPANY"), PROMISES TO PAY INTEREST ON THE PRINCIPAL AMOUNT OF
THIS NOTE AT 11 1/2% PER ANNUM FROM MAY 28, 1999 UNTIL MATURITY AND SHALL PAY
THE LIQUIDATED DAMAGES, IF ANY, PAYABLE PURSUANT TO SECTION 5 OF THE
REGISTRATION RIGHTS AGREEMENT REFERRED TO BELOW. THE COMPANY SHALL PAY INTEREST
AND LIQUIDATED DAMAGES SEMI-ANNUALLY IN ARREARS ON JUNE 1 AND DECEMBER 1 OF EACH
YEAR, OR IF ANY SUCH DAY IS NOT A BUSINESS DAY, ON THE NEXT SUCCEEDING BUSINESS
DAY (EACH AN "INTEREST PAYMENT DATE"). INTEREST ON THE NOTES SHALL ACCRUE FROM
THE MOST RECENT DATE TO WHICH INTEREST HAS BEEN PAID OR, IF NO INTEREST HAS BEEN
PAID, FROM THE DATE OF ISSUANCE; PROVIDED THAT IF THERE IS NO EXISTING DEFAULT
IN THE PAYMENT OF INTEREST, AND IF THIS NOTE IS AUTHENTICATED BETWEEN A RECORD
DATE REFERRED TO ON THE FACE HEREOF AND THE NEXT SUCCEEDING INTEREST PAYMENT
DATE, INTEREST SHALL ACCRUE FROM SUCH NEXT SUCCEEDING INTEREST PAYMENT DATE;
PROVIDED, FURTHER, THAT THE FIRST INTEREST PAYMENT DATE SHALL BE DECEMBER 1,
1999. THE COMPANY SHALL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN ANY
PROCEEDING UNDER ANY BANKRUPTCY LAW) ON OVERDUE PRINCIPAL AND PREMIUM, IF ANY,
FROM TIME TO TIME ON DEMAND AT A RATE THAT IS 1% PER ANNUM IN EXCESS OF THE RATE
THEN IN EFFECT; IT SHALL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN ANY
PROCEEDING UNDER ANY BANKRUPTCY LAW) ON OVERDUE INSTALLMENTS OF INTEREST AND
LIQUIDATED DAMAGES (WITHOUT REGARD TO ANY APPLICABLE GRACE PERIODS) FROM TIME TO
TIME ON DEMAND AT THE SAME RATE TO THE EXTENT LAWFUL. INTEREST SHALL BE COMPUTED
ON THE BASIS OF A 360-DAY YEAR OF TWELVE 30-DAY MONTHS.
2. METHOD OF PAYMENT. THE COMPANY SHALL PAY INTEREST ON THE NOTES
(EXCEPT DEFAULTED INTEREST) AND LIQUIDATED DAMAGES TO THE PERSONS WHO ARE
REGISTERED HOLDERS OF NOTES AT THE CLOSE OF BUSINESS ON THE MAY 15 OR NOVEMBER
15 NEXT PRECEDING THE INTEREST PAYMENT DATE, EVEN IF SUCH NOTES ARE CANCELED
AFTER SUCH RECORD DATE AND ON OR BEFORE SUCH INTEREST PAYMENT DATE, EXCEPT AS
PROVIDED IN SECTION 2.12 OF THE INDENTURE WITH RESPECT TO DEFAULTED INTEREST.
THE NOTES SHALL BE PAYABLE AS TO PRINCIPAL, PREMIUM AND LIQUIDATED DAMAGES, IF
ANY, AND INTEREST AT THE OFFICE OR AGENCY OF THE COMPANY MAINTAINED FOR SUCH
PURPOSE WITHIN OR WITHOUT THE CITY AND STATE OF NEW YORK, OR, AT THE OPTION OF
THE COMPANY, PAYMENT OF INTEREST AND LIQUIDATED DAMAGES MAY BE MADE BY CHECK
MAILED TO THE HOLDERS AT THEIR ADDRESSES SET FORTH IN THE REGISTER OF HOLDERS,
AND PROVIDED THAT PAYMENT BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS SHALL
BE REQUIRED WITH RESPECT TO PRINCIPAL OF AND INTEREST, PREMIUM AND LIQUIDATED
DAMAGES ON, ALL GLOBAL NOTES AND ALL OTHER NOTES THE HOLDERS OF WHICH SHALL HAVE
PROVIDED WIRE TRANSFER INSTRUCTIONS TO THE COMPANY OR THE PAYING AGENT. SUCH
PAYMENT SHALL BE IN SUCH COIN OR CURRENCY OF THE UNITED STATES OF AMERICA AS AT
THE TIME OF PAYMENT IS LEGAL TENDER FOR PAYMENT OF PUBLIC AND PRIVATE DEBTS.
3. PAYING AGENT AND REGISTRAR. INITIALLY, U.S. BANK TRUST NATIONAL
ASSOCIATION, THE TRUSTEE UNDER THE INDENTURE, SHALL ACT AS PAYING AGENT AND
REGISTRAR. THE COMPANY MAY CHANGE ANY PAYING AGENT OR REGISTRAR WITHOUT NOTICE
TO ANY HOLDER. THE COMPANY OR ANY OF ITS SUBSIDIARIES MAY ACT IN ANY SUCH
CAPACITY.
4. INDENTURE. THE COMPANY ISSUED THE NOTES UNDER AN INDENTURE DATED
AS OF MAY 28, 1999 ("INDENTURE") BETWEEN THE COMPANY AND THE TRUSTEE. 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, AS AMENDED (15 U.S.
CODE Sections 77AAA-77BBBB). THE NOTES ARE SUBJECT TO ALL SUCH TERMS, AND
HOLDERS ARE REFERRED TO THE INDENTURE AND SUCH ACT FOR A
A1-3
STATEMENT OF SUCH TERMS. THE NOTES ARE SUBORDINATED IN RIGHT OF PAYMENT TO THE
PRIOR PAYMENT IN FULL IN CASH OF ALL SENIOR DEBT, TO THE EXTENT AND IN THE
MANNER PROVIDED IN ARTICLE 10 OF THE INDENTURE. TO THE EXTENT ANY PROVISION OF
THIS NOTE CONFLICTS WITH THE EXPRESS PROVISIONS OF THE INDENTURE, THE PROVISIONS
OF THE INDENTURE SHALL GOVERN AND BE CONTROLLING. THE NOTES ARE OBLIGATIONS OF
THE COMPANY LIMITED TO $275 MILLION IN AGGREGATE PRINCIPAL AMOUNT.
5. OPTIONAL REDEMPTION.
(A) EXCEPT AS SET FORTH IN SUBPARAGRAPH (B) OF THIS PARAGRAPH 5, THE
COMPANY SHALL NOT HAVE THE OPTION TO REDEEM THE NOTES PRIOR TO JUNE 1, 2004.
THEREAFTER, THE COMPANY SHALL HAVE THE OPTION TO REDEEM THE NOTES, IN WHOLE OR
IN PART, UPON NOT LESS THAN 30 NOR MORE THAN 60 DAYS' NOTICE, AT THE REDEMPTION
PRICES (EXPRESSED AS PERCENTAGES OF PRINCIPAL AMOUNT) SET FORTH BELOW PLUS
ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON TO THE APPLICABLE
REDEMPTION DATE, IF REDEEMED DURING THE TWELVE-MONTH PERIOD BEGINNING ON JUNE 1
OF THE YEARS INDICATED BELOW:
YEAR PERCENTAGE
---- ----------
2004 ........................... 105.7500%
2005 ........................... 103.8333%
2006 ........................... 101.9167%
2007 AND THEREAFTER ............ 100.0000%
(B) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (A) OF THIS
PARAGRAPH 5, AT ANY TIME PRIOR TO JUNE 1, 2002, THE COMPANY MAY REDEEM UP TO 35%
OF THE AGGREGATE PRINCIPAL AMOUNT OF NOTES ORIGINALLY ISSUED UNDER THE INDENTURE
AT A REDEMPTION PRICE OF 111.50 % OF THE AGGREGATE PRINCIPAL AMOUNT THEREOF,
PLUS ACCRUED AND UNPAID INTEREST TO THE REDEMPTION DATE, WITH THE NET CASH
PROCEEDS OF ONE OR MORE EQUITY OFFERINGS; PROVIDED THAT AT LEAST 65% OF THE
AGGREGATE PRINCIPAL AMOUNT OF NOTES ISSUED UNDER THE INDENTURE REMAINS
OUTSTANDING IMMEDIATELY AFTER THE OCCURRENCE OF EACH SUCH REDEMPTION (EXCLUDING
NOTES HELD BY THE COMPANY AND ITS SUBSIDIARIES) AND THE REDEMPTION OCCURS WITHIN
90 DAYS OF THE DATE OF THE CLOSING OF SUCH EQUITY OFFERING.
6. MANDATORY REDEMPTION.
EXCEPT AS SET FORTH IN PARAGRAPH 7 BELOW, THE COMPANY SHALL NOT BE
REQUIRED TO MAKE MANDATORY REDEMPTION PAYMENTS WITH RESPECT TO THE NOTES.
7. REPURCHASE AT OPTION OF HOLDER.
(A) IF THERE IS A CHANGE OF CONTROL, THE COMPANY SHALL BE REQUIRED TO
MAKE AN OFFER (A "CHANGE OF CONTROL OFFER") TO REPURCHASE ALL OR ANY PART (EQUAL
TO $1,000 OR AN INTEGRAL MULTIPLE THEREOF) OF EACH HOLDER'S NOTES AT A PURCHASE
PRICE EQUAL TO 101% OF THE AGGREGATE PRINCIPAL AMOUNT THEREOF PLUS ACCRUED AND
UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE DATE OF PURCHASE
(THE "CHANGE OF CONTROL PAYMENT"). WITHIN 30 DAYS FOLLOWING ANY CHANGE OF
CONTROL, THE COMPANY SHALL MAIL A NOTICE TO EACH HOLDER SETTING FORTH THE
PROCEDURES GOVERNING THE CHANGE OF CONTROL OFFER AS REQUIRED BY THE INDENTURE.
(B) WHEN THE AGGREGATE AMOUNT OF EXCESS PROCEEDS FROM ONE OR MORE
ASSET SALES
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EXCEEDS $10.0 MILLION, THE COMPANY SHALL COMMENCE AN OFFER TO ALL HOLDERS OF
NOTES (AS "ASSET SALE OFFER") PURSUANT TO SECTION 3.09 OF THE INDENTURE TO
PURCHASE THE MAXIMUM PRINCIPAL AMOUNT OF NOTES (INCLUDING ANY ADDITIONAL NOTES)
THAT MAY BE PURCHASED OUT OF THE EXCESS PROCEEDS AT AN OFFER PRICE IN CASH IN AN
AMOUNT EQUAL TO 100% OF THE PRINCIPAL AMOUNT THEREOF PLUS ACCRUED AND UNPAID
INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE DATE FIXED FOR THE
CLOSING OF SUCH OFFER IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE
INDENTURE. TO THE EXTENT THAT THE AGGREGATE AMOUNT OF NOTES (INCLUDING ANY
ADDITIONAL NOTES) TENDERED PURSUANT TO AN ASSET SALE OFFER IS LESS THAN THE
EXCESS PROCEEDS, THE COMPANY (OR SUCH SUBSIDIARY) MAY USE SUCH DEFICIENCY FOR
GENERAL CORPORATE PURPOSES. IF THE AGGREGATE PRINCIPAL AMOUNT OF NOTES
SURRENDERED BY HOLDERS THEREOF EXCEEDS THE AMOUNT OF EXCESS PROCEEDS, THE
TRUSTEE SHALL SELECT THE NOTES TO BE PURCHASED ON A PRO RATA BASIS. HOLDERS OF
NOTES THAT ARE THE SUBJECT OF AN OFFER TO PURCHASE SHALL RECEIVE AN ASSET SALE
OFFER FROM THE COMPANY PRIOR TO ANY RELATED PURCHASE DATE AND MAY ELECT TO HAVE
SUCH NOTES PURCHASED BY COMPLETING THE FORM ENTITLED "OPTION OF HOLDER TO ELECT
PURCHASE" ON THE REVERSE OF THE NOTES.
8. NOTICE OF REDEMPTION. NOTICE OF REDEMPTION SHALL BE MAILED AT
LEAST 30 DAYS BUT NOT MORE THAN 60 DAYS BEFORE THE REDEMPTION DATE TO EACH
HOLDER WHOSE NOTES ARE TO BE REDEEMED AT ITS REGISTERED ADDRESS. NOTES IN
DENOMINATIONS LARGER THAN $1,000 MAY BE REDEEMED IN PART BUT ONLY IN WHOLE
MULTIPLES OF $1,000, UNLESS ALL OF THE NOTES HELD BY A HOLDER ARE TO BE
REDEEMED. ON AND AFTER THE REDEMPTION DATE INTEREST CEASES TO ACCRUE ON NOTES OR
PORTIONS THEREOF CALLED FOR REDEMPTION.
9. DENOMINATIONS, TRANSFER, EXCHANGE. THE NOTES ARE IN REGISTERED
FORM WITHOUT COUPONS IN DENOMINATIONS OF $1,000 AND INTEGRAL MULTIPLES OF
$1,000. THE TRANSFER OF NOTES MAY BE REGISTERED AND NOTES MAY BE EXCHANGED AS
PROVIDED IN THE INDENTURE. THE REGISTRAR AND THE TRUSTEE MAY REQUIRE A HOLDER,
AMONG OTHER THINGS, TO FURNISH APPROPRIATE ENDORSEMENTS AND TRANSFER DOCUMENTS
AND THE COMPANY MAY REQUIRE A HOLDER TO PAY ANY TAXES AND FEES REQUIRED BY LAW
OR PERMITTED BY THE INDENTURE. THE COMPANY NEED NOT EXCHANGE OR REGISTER THE
TRANSFER OF ANY NOTE OR PORTION OF A NOTE SELECTED FOR REDEMPTION, EXCEPT FOR
THE UNREDEEMED PORTION OF ANY NOTE BEING REDEEMED IN PART. ALSO, THE COMPANY
NEED NOT EXCHANGE OR REGISTER THE TRANSFER OF ANY NOTES FOR A PERIOD OF 15 DAYS
BEFORE A SELECTION OF NOTES TO BE REDEEMED OR DURING THE PERIOD BETWEEN A RECORD
DATE AND THE CORRESPONDING INTEREST PAYMENT DATE.
10. PERSONS DEEMED OWNERS. THE REGISTERED HOLDER OF A NOTE MAY
BE TREATED AS ITS OWNER FOR ALL PURPOSES.
11. AMENDMENT, SUPPLEMENT AND WAIVER. SUBJECT TO CERTAIN EXCEPTIONS,
THE INDENTURE OR THE NOTES MAY BE AMENDED OR SUPPLEMENTED WITH THE CONSENT OF
THE HOLDERS OF AT LEAST A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING
NOTES AND ADDITIONAL NOTES, IF ANY, VOTING AS A SINGLE CLASS, AND ANY EXISTING
DEFAULT OR COMPLIANCE WITH ANY PROVISION OF THE INDENTURE, THE SUBSIDIARY
GUARANTIES OR THE NOTES AND ADDITIONAL NOTES, IF ANY, MAY BE WAIVED WITH THE
CONSENT OF THE HOLDERS OF A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING
NOTES VOTING AS A SINGLE CLASS. WITHOUT THE CONSENT OF ANY HOLDER OF A NOTE, THE
INDENTURE OR THE NOTES MAY BE AMENDED OR SUPPLEMENTED TO CURE ANY AMBIGUITY,
DEFECT OR INCONSISTENCY, TO PROVIDE FOR UNCERTIFICATED NOTES IN ADDITION TO OR
IN PLACE OF CERTIFICATED NOTES, TO PROVIDE FOR THE ASSUMPTION OF THE COMPANY'S
OR ANY SUBSIDIARY GUARANTOR'S OBLIGATIONS TO HOLDERS OF THE NOTES IN CASE OF A
MERGER OR CONSOLIDATION, TO
A1-5
MAKE ANY CHANGE THAT WOULD PROVIDE ANY ADDITIONAL RIGHTS OR BENEFITS TO THE
HOLDERS OF THE NOTES OR THAT DOES NOT ADVERSELY AFFECT THE LEGAL RIGHTS UNDER
THE INDENTURE OF ANY SUCH HOLDER, OR TO COMPLY WITH THE REQUIREMENTS OF THE SEC
IN ORDER TO EFFECT OR MAINTAIN THE QUALIFICATION OF THE INDENTURE UNDER THE
TRUST INDENTURE ACT, TO PROVIDE FOR THE ISSUANCE OF ADDITIONAL NOTES IN
ACCORDANCE WITH THE LIMITATIONS SET FORTH IN THE INDENTURE, OR TO ALLOW ANY
GUARANTOR TO EXECUTE A SUPPLEMENTAL INDENTURE TO THE INDENTURE AND/OR A
SUBSIDIARY GUARANTEE WITH RESPECT TO THE NOTE.
12. DEFAULTS AND REMEDIES. EVENTS OF DEFAULT INCLUDE: (I) DEFAULT FOR
30 DAYS IN THE PAYMENT WHEN DUE OF INTEREST ON OR LIQUIDATED DAMAGES, IF ANY,
WITH RESPECT TO THE NOTES; (II) DEFAULT IN PAYMENT WHEN DUE OF PRINCIPAL OF OR
PREMIUM, IF ANY, ON THE NOTES, (III) FAILURE BY THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES TO COMPLY WITH SECTION 5.01 OF THE INDENTURE; (IV)
FAILURE BY THE COMPANY OR THE COMPANY'S RESTRICTED SUBSIDIARIES FOR 60 DAYS
AFTER NOTICE TO THE COMPANY BY THE TRUSTEE OR THE HOLDERS OF AT LEAST 25% IN
AGGREGATE PRINCIPAL AMOUNT OF THE NOTES (INCLUDING ADDITIONAL NOTES, IF ANY)
THEN OUTSTANDING VOTING AS A SINGLE CLASS TO COMPLY WITH CERTAIN OTHER
AGREEMENTS IN THE INDENTURE OR THE NOTES; (V) DEFAULT UNDER CERTAIN OTHER
AGREEMENTS RELATING TO INDEBTEDNESS OF THE COMPANY WHICH DEFAULT RESULTS IN THE
ACCELERATION OF SUCH INDEBTEDNESS PRIOR TO ITS EXPRESS MATURITY; (VI) CERTAIN
FINAL JUDGMENTS FOR THE PAYMENT OF MONEY THAT REMAIN UNDISCHARGED FOR A PERIOD
OF 90 DAYS; (VII) EXCEPT AS PERMITTED BY THE INDENTURE, ANY SUBSIDIARY GUARANTY
SHALL BE HELD IN ANY JUDICIAL PROCEEDING TO BE UNENFORCEABLE OR INVALID OR SHALL
CEASE FOR ANY REASON TO BE IN FULL FORCE AND EFFECT OR ANY SUBSIDIARY GUARANTOR
OR ANY PERSON ACTION ON ITS BEHALF SHALL DENY OR DISAFFIRM ITS OBLIGATIONS UNDER
SUCH SUBSIDIARY GUARANTOR'S SUBSIDIARY GUARANTY; AND (VIII) CERTAIN EVENTS OF
BANKRUPTCY OR INSOLVENCY WITH RESPECT TO THE COMPANY OR ANY SUBSIDIARY OR GROUP
OF SUBSIDIARIES THAT, INDIVIDUALLY OR IN THE AGGREGATE, WOULD CONSTITUTE A
SIGNIFICANT SUBSIDIARY. IF ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING, THE
TRUSTEE OR THE HOLDERS OF AT LEAST 25% IN PRINCIPAL AMOUNT OF THE THEN
OUTSTANDING NOTES MAY DECLARE ALL THE NOTES TO BE DUE AND PAYABLE; PROVIDED,
HOWEVER, THAT SO LONG AS ANY INDEBTEDNESS PERMITTED TO BE INCURRED UNDER THE
INDENTURE AS PART OF THE CREDIT FACILITIES IS OUTSTANDING, NO SUCH ACCELERATION
SHALL BE EFFECTIVE UNTIL THE EARLIER OF (I) FIVE BUSINESS DAYS AFTER THE GIVING
OF WRITTEN NOTICE TO THE COMPANY AND THE ADMINISTRATIVE AGENT UNDER THE CREDIT
FACILITIES OF SUCH ACCELERATION OR (II) ACCELERATION OF ANY SUCH INDEBTEDNESS
UNDER THE CREDIT FACILITIES. NOTWITHSTANDING THE FOREGOING, IN THE CASE OF AN
EVENT OF DEFAULT ARISING FROM CERTAIN EVENTS OF BANKRUPTCY OR INSOLVENCY, ALL
OUTSTANDING NOTES SHALL BECOME DUE AND PAYABLE WITHOUT FURTHER ACTION OR NOTICE.
HOLDERS MAY NOT ENFORCE THE INDENTURE OR THE NOTES EXCEPT AS PROVIDED IN THE
INDENTURE. SUBJECT TO CERTAIN LIMITATIONS, HOLDERS OF A MAJORITY IN PRINCIPAL
AMOUNT OF THE THEN OUTSTANDING NOTES MAY DIRECT THE TRUSTEE IN ITS EXERCISE OF
ANY TRUST OR POWER. THE TRUSTEE MAY WITHHOLD FROM HOLDERS OF THE NOTES NOTICE OF
ANY CONTINUING DEFAULT OR EVENT OF DEFAULT (EXCEPT A DEFAULT OR EVENT OF DEFAULT
RELATING TO THE PAYMENT OF PRINCIPAL OR INTEREST) IF IT DETERMINES THAT
WITHHOLDING NOTICE IS IN THEIR INTEREST. THE HOLDERS OF A MAJORITY IN AGGREGATE
PRINCIPAL AMOUNT OF THE NOTES THEN OUTSTANDING BY NOTICE TO THE TRUSTEE MAY ON
BEHALF OF THE HOLDERS OF ALL OF THE NOTES WAIVE ANY EXISTING DEFAULT OR EVENT OF
DEFAULT AND ITS CONSEQUENCES UNDER THE INDENTURE EXCEPT A CONTINUING DEFAULT OR
EVENT OF DEFAULT IN THE PAYMENT OF INTEREST OR LIQUIDATED DAMAGES ON, OR THE
PRINCIPAL OF, THE NOTES. THE COMPANY IS REQUIRED TO DELIVER TO THE TRUSTEE
ANNUALLY A STATEMENT REGARDING COMPLIANCE WITH THE INDENTURE, AND THE COMPANY IS
REQUIRED UPON BECOMING AWARE OF ANY DEFAULT OR EVENT OF DEFAULT, TO DELIVER TO
THE TRUSTEE A STATEMENT SPECIFYING SUCH DEFAULT OR EVENT OF DEFAULT.
A1-6
13. TRUSTEE DEALINGS WITH COMPANY. THE TRUSTEE, IN ITS INDIVIDUAL OR
ANY OTHER CAPACITY, MAY MAKE LOANS TO, ACCEPT DEPOSITS FROM, AND PERFORM
SERVICES FOR THE COMPANY OR ITS AFFILIATES, AND MAY OTHERWISE DEAL WITH THE
COMPANY OR ITS AFFILIATES, AS IF IT WERE NOT THE TRUSTEE.
14. NO RECOURSE AGAINST OTHERS. A DIRECTOR, OFFICER, EMPLOYEE,
INCORPORATOR OR STOCKHOLDER, OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR, AS
SUCH, SHALL NOT HAVE ANY LIABILITY FOR ANY OBLIGATIONS OF THE COMPANY OR THE
SUBSIDIARY GUARANTORS 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 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.
15. AUTHENTICATION. THIS NOTE SHALL NOT BE VALID UNTIL
AUTHENTICATED BY THE MANUAL SIGNATURE OF THE TRUSTEE OR AN AUTHENTICATING
AGENT.
16. ABBREVIATIONS. CUSTOMARY ABBREVIATIONS MAY BE USED IN THE NAME OF
A HOLDER OR AN ASSIGNEE, SUCH AS: TEN COM (= TENANTS IN COMMON), TEN ENT (=
TENANTS BY THE ENTIRETIES), JT TEN (= JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
AND NOT AS TENANTS IN COMMON), CUST (= CUSTODIAN), AND U/G/M/A (= UNIFORM GIFTS
TO MINORS ACT).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. IN ADDITION TO THE RIGHTS PROVIDED TO HOLDERS OF
NOTES UNDER THE INDENTURE, HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES SHALL HAVE ALL THE RIGHTS SET FORTH IN THE REGISTRATION RIGHTS
AGREEMENT DATED AS OF MAY 28, 1999, BETWEEN THE COMPANY AND THE PARTIES NAMED ON
THE SIGNATURE PAGES THEREOF OR, IN THE CASE OF ADDITIONAL NOTES, HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES SHALL HAVE THE RIGHTS
SET FORTH IN ONE OR MORE REGISTRATION RIGHTS AGREEMENTS, IF ANY, BETWEEN THE
COMPANY AND THE OTHER PARTIES THERETO, RELATING TO RIGHTS GIVEN BY THE COMPANY
TO THE PURCHASERS OF ANY ADDITIONAL NOTES (COLLECTIVELY, THE "REGISTRATION
RIGHTS AGREEMENT").
18. 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 AND THE TRUSTEE MAY USE CUSIP NUMBERS
IN NOTICES OF REDEMPTION AS A CONVENIENCE TO HOLDERS. NO REPRESENTATION IS MADE
AS TO THE ACCURACY OF SUCH NUMBERS EITHER AS PRINTED ON THE NOTES OR AS
CONTAINED IN ANY NOTICE OF REDEMPTION AND RELIANCE MAY BE PLACED ONLY ON THE
OTHER IDENTIFICATION NUMBERS PLACED THEREON.
THE COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE AND/OR THE REGISTRATION RIGHTS AGREEMENT.
REQUESTS MAY BE MADE TO:
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
0000 XXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
ATTENTION: CHIEF FINANCIAL OFFICER
A1-7
ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
(I) OR (WE) ASSIGN AND TRANSFER THIS NOTE TO: (INSERT ASSIGNEE'S LEGAL NAME)
----------------------------------------------------------------------------
(INSERT ASSIGNEE'S SOC. SEC. OR TAX I.D. NO.)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE)
AND IRREVOCABLY APPOINT
----------------------------------------------------
TO TRANSFER THIS NOTE ON THE BOOKS OF THE COMPANY. THE AGENT MAY SUBSTITUTE
ANOTHER TO ACT FOR HIM.
DATE:
YOUR SIGNATURE:
------------------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE FACE OF THIS NOTE)
SIGNATURE GUARANTEE*:
------------------------------------------------------
* PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTEE MEDALLION PROGRAM (OR OTHER
SIGNATURE SUBSIDIARY GUARANTOR ACCEPTABLE TO THE TRUSTEE).
A1-8
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY
PURSUANT TO SECTION 4.10 OR 4.15 OF THE INDENTURE, CHECK THE APPROPRIATE BOX
BELOW:
SECTION 4.10 SECTION 4.15
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THE NOTE PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.10 OR SECTION 4.15 OF THE INDENTURE, STATE THE
AMOUNT YOU ELECT TO HAVE PURCHASED:
$
-----------------------------
DATE:
--------------------
YOUR SIGNATURE:
-----------------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE FACE OF THIS NOTE)
TAX IDENTIFICATION NO.:
-----------
SIGNATURE GUARANTEE*:
------------------------------------------------------
* PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTEE MEDALLION PROGRAM (OR OTHER
SIGNATURE SUBSIDIARY GUARANTOR ACCEPTABLE TO THE TRUSTEE).
A1-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NOTE FOR AN
INTEREST IN ANOTHER GLOBAL NOTE OR FOR A DEFINITIVE NOTE, OR EXCHANGES OF A
PART OF ANOTHER GLOBAL NOTE OR DEFINITIVE NOTE FOR AN INTEREST IN THIS GLOBAL
NOTE, HAVE BEEN MADE:
PRINCIPAL AMOUNT
AMOUNT OF AMOUNT OF OF THIS GLOBAL NOTE SIGNATURE OF
DECREASE IN INCREASE IN FOLLOWING SUCH AUTHORIZED OFFICER
PRINCIPAL AMOUNT PRINCIPAL AMOUNT DECREASE (OR) OF TRUSTEE OR
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) NOTE CUSTODIAN
---------------- ------------------- ------------------- ------------------- ------------------
A1-10
[EXHIBIT A2]
[FACE OF REGULATION S TEMPORARY GLOBAL NOTE]
CUSIP __________
11 1/2% [SERIES A] [SERIES B] SENIOR NOTES DUE 2009
NO. ___ $__________
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
PROMISES TO PAY TO CEDE & CO.
OR REGISTERED ASSIGNS,
THE PRINCIPAL SUM OF
DOLLARS ON JUNE 1, 2009.
INTEREST PAYMENT DATES: JUNE 1, AND DECEMBER 1
RECORD DATES: MAY 15, AND NOVEMBER 15
DATED: MAY 28, 1999
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
BY:
NAME:
TITLE:
BY:
NAME:
TITLE:
THIS IS ONE OF THE NOTES REFERRED TO
IN THE WITHIN-MENTIONED INDENTURE:
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
BY:
----------------------------------
AUTHORIZED SIGNATORY
A2-1
[EXHIBIT A2]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A2-2
[BACK OF REGULATION S TEMPORARY GLOBAL NOTE]
11 1/2% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTES DUE 2009
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED, AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER
OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) (A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (B) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE NOTES (THE FORM OF SUCH LETTER CAN BE OBTAINED FROM
THE TRUSTEE) OR (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT IN THE CASE OF A TRANSFER
PURSUANT TO CLAUSE (F) SUCH TRANSFER IS EFFECTED BY THE DELIVERY TO THE
TRANSFEREE OF DEFINITIVE SECURITIES REGISTERED IN ITS NAME (OR ITS NOMINEES
NAME) IN THE BOOKS MAINTAINED BY THE REGISTRAR, AND IS SUBJECT TO THE RECEIPT BY
THE REGISTRAR (AND THE COMPANY, IF IT SO REQUESTS) OF A CERTIFICATION OF THE
TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (II) TO THE COMPANY OR (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE,
A2-3
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO
THEM IN THE INDENTURE REFERRED TO BELOW UNLESS OTHERWISE INDICATED.
1. INTEREST. X. X. XXXXXX AUTOMOTIVE CASTINGS, INC., A DELAWARE
CORPORATION (THE "COMPANY"), PROMISES TO PAY INTEREST ON THE PRINCIPAL AMOUNT OF
THIS NOTE AT 11 1/2% PER ANNUM FROM MAY 28 1999 UNTIL MATURITY AND SHALL PAY THE
LIQUIDATED DAMAGES PAYABLE PURSUANT TO SECTION 5 OF THE REGISTRATION RIGHTS
AGREEMENT REFERRED TO BELOW. THE COMPANY SHALL PAY INTEREST AND LIQUIDATED
DAMAGES SEMI-ANNUALLY IN ARREARS ON JUNE 1 AND DECEMBER 1 OF EACH YEAR, OR IF
ANY SUCH DAY IS NOT A BUSINESS DAY, ON THE NEXT SUCCEEDING BUSINESS DAY (EACH AN
"INTEREST PAYMENT DATE"). INTEREST ON THE NOTES SHALL ACCRUE FROM THE MOST
RECENT DATE TO WHICH INTEREST HAS BEEN PAID OR, IF NO INTEREST HAS BEEN PAID,
FROM THE DATE OF ISSUANCE; PROVIDED THAT IF THERE IS NO EXISTING DEFAULT IN THE
PAYMENT OF INTEREST, AND IF THIS NOTE IS AUTHENTICATED BETWEEN A RECORD DATE
REFERRED TO ON THE FACE HEREOF AND THE NEXT SUCCEEDING INTEREST PAYMENT DATE,
INTEREST SHALL ACCRUE FROM SUCH NEXT SUCCEEDING INTEREST PAYMENT DATE; PROVIDED,
FURTHER, THAT THE FIRST INTEREST PAYMENT DATE SHALL BE DECEMBER 1, 1999. THE
COMPANY SHALL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN ANY PROCEEDING
UNDER ANY BANKRUPTCY LAW) ON OVERDUE PRINCIPAL AND PREMIUM, IF ANY, FROM TIME TO
TIME ON DEMAND AT A RATE THAT IS 1% PER ANNUM IN EXCESS OF THE RATE THEN IN
EFFECT; IT SHALL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN ANY
PROCEEDING UNDER ANY BANKRUPTCY LAW) ON OVERDUE INSTALLMENTS OF INTEREST AND
LIQUIDATED DAMAGES (WITHOUT REGARD TO ANY APPLICABLE GRACE PERIODS) FROM TIME TO
TIME ON DEMAND AT THE SAME RATE TO THE EXTENT LAWFUL. INTEREST SHALL BE COMPUTED
ON THE BASIS OF A 360-DAY YEAR OF TWELVE 30-DAY MONTHS.
UNTIL THIS REGULATION S TEMPORARY GLOBAL NOTE IS EXCHANGED FOR ONE OR
MORE REGULATION S PERMANENT GLOBAL NOTES, THE HOLDER HEREOF SHALL NOT BE
ENTITLED TO RECEIVE PAYMENTS OF INTEREST HEREON; UNTIL SO EXCHANGED IN FULL,
THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL IN ALL OTHER RESPECTS BE ENTITLED
TO THE SAME BENEFITS AS OTHER SENIOR SUBORDINATED NOTES UNDER THE INDENTURE.
2. METHOD OF PAYMENT. THE COMPANY SHALL PAY INTEREST ON THE NOTES
(EXCEPT DEFAULTED INTEREST) AND LIQUIDATED DAMAGES TO THE PERSONS WHO ARE
REGISTERED HOLDERS OF NOTES AT THE CLOSE OF BUSINESS ON THE MAY 15 OR NOVEMBER
15 NEXT PRECEDING THE INTEREST PAYMENT DATE, EVEN IF SUCH NOTES ARE CANCELED
AFTER SUCH RECORD DATE AND ON OR BEFORE SUCH INTEREST PAYMENT DATE, EXCEPT AS
PROVIDED IN SECTION 2.12 OF THE INDENTURE WITH RESPECT TO DEFAULTED INTEREST.
THE NOTES SHALL BE PAYABLE AS TO PRINCIPAL, PREMIUM AND LIQUIDATED DAMAGES, IF
ANY, AND INTEREST AT THE OFFICE OR AGENCY OF THE COMPANY MAINTAINED FOR SUCH
PURPOSE WITHIN OR WITHOUT THE CITY AND STATE OF NEW YORK, OR, AT THE OPTION OF
THE COMPANY, PAYMENT OF INTEREST AND LIQUIDATED DAMAGES MAY BE MADE BY CHECK
MAILED TO THE HOLDERS AT THEIR ADDRESSES SET FORTH IN THE REGISTER OF HOLDERS,
AND PROVIDED THAT PAYMENT BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS SHALL
BE REQUIRED WITH RESPECT TO PRINCIPAL OF AND INTEREST, PREMIUM AND LIQUIDATED
DAMAGES ON, ALL GLOBAL NOTES AND ALL OTHER NOTES THE HOLDERS OF WHICH SHALL HAVE
PROVIDED WIRE TRANSFER INSTRUCTIONS TO THE COMPANY OR THE PAYING AGENT. SUCH
PAYMENT SHALL BE IN SUCH COIN OR CURRENCY OF THE UNITED STATES OF AMERICA AS AT
THE TIME OF PAYMENT IS LEGAL TENDER FOR PAYMENT OF PUBLIC AND PRIVATE DEBTS.
A2-4
3. PAYING AGENT AND REGISTRAR. INITIALLY, U.S. BANK TRUST NATIONAL
ASSOCIATION, THE TRUSTEE UNDER THE INDENTURE, SHALL ACT AS PAYING AGENT AND
REGISTRAR. THE COMPANY MAY CHANGE ANY PAYING AGENT OR REGISTRAR WITHOUT NOTICE
TO ANY HOLDER. THE COMPANY OR ANY OF ITS SUBSIDIARIES MAY ACT IN ANY SUCH
CAPACITY.
4. INDENTURE. THE COMPANY ISSUED THE NOTES UNDER AN INDENTURE
DATED AS OF MAY 28, 1999 ("INDENTURE") BETWEEN THE COMPANY AND THE TRUSTEE.
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, AS
AMENDED (15 U.S. CODE Sections 77AAA-77BBBB). THE NOTES ARE SUBJECT TO ALL
SUCH TERMS, AND HOLDERS ARE REFERRED TO THE INDENTURE AND SUCH ACT FOR A
STATEMENT OF SUCH TERMS. THE NOTES ARE SUBORDINATED IN RIGHT OF PAYMENT TO
THE PRIOR PAYMENT IN FULL IN CASH OF ALL SENIOR DEBT, TO THE EXTENT AND IN
THE MANNER PROVIDED IN ARTICLE 10 OF THE INDENTURE. TO THE EXTENT ANY
PROVISION OF THIS NOTE CONFLICTS WITH THE EXPRESS PROVISIONS OF THE
INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL GOVERN AND BE CONTROLLING.
THE NOTES ARE OBLIGATIONS OF THE COMPANY LIMITED TO $275 MILLION IN AGGREGATE
PRINCIPAL AMOUNT.
5. OPTIONAL REDEMPTION.
(A) EXCEPT AS SET FORTH IN SUBPARAGRAPH (B) OF THIS PARAGRAPH 5, THE
COMPANY SHALL NOT HAVE THE OPTION TO REDEEM THE NOTES PRIOR TO JUNE 1, 2004.
THEREAFTER, THE COMPANY SHALL HAVE THE OPTION TO REDEEM THE NOTES, IN WHOLE OR
IN PART, UPON NOT LESS THAN 30 NOR MORE THAN 60 DAYS' NOTICE, AT THE REDEMPTION
PRICES (EXPRESSED AS PERCENTAGES OF PRINCIPAL AMOUNT) SET FORTH BELOW PLUS
ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON TO THE APPLICABLE
REDEMPTION DATE, IF REDEEMED DURING THE TWELVE-MONTH PERIOD BEGINNING ON JUNE 1
OF THE YEARS INDICATED BELOW:
YEAR PERCENTAGE
---- ----------
2004 ........................... 105.7500%
2005 ........................... 103.8333%
2006 ........................... 101.9167%
2007 AND THEREAFTER ............ 100.0000%
(B) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (A) OF THIS
PARAGRAPH 5, AT ANY TIME PRIOR TO JUNE 1, 2002, THE COMPANY MAY REDEEM UP TO 35%
OF THE AGGREGATE PRINCIPAL AMOUNT OF NOTES ORIGINALLY ISSUED UNDER THE INDENTURE
AT A REDEMPTION PRICE OF 111.50% OF THE AGGREGATE PRINCIPAL AMOUNT THEREOF, PLUS
ACCRUED AND UNPAID INTEREST TO THE REDEMPTION DATE, WITH THE NET CASH PROCEEDS
OF ONE OR MORE EQUITY OFFERINGS; PROVIDED THAT AT LEAST 65% OF THE AGGREGATE
PRINCIPAL AMOUNT OF NOTES ISSUED UNDER THE INDENTURE REMAINS OUTSTANDING
IMMEDIATELY AFTER THE OCCURRENCE OF EACH SUCH REDEMPTION (EXCLUDING NOTES HELD
BY THE COMPANY AND ITS SUBSIDIARIES) AND THE REDEMPTION OCCURS WITHIN 90 DAYS OF
THE DATE OF THE CLOSING OF SUCH EQUITY OFFERING.
6. MANDATORY REDEMPTION.
EXCEPT AS SET FORTH IN PARAGRAPH 7 BELOW, THE COMPANY SHALL NOT BE
REQUIRED TO MAKE MANDATORY REDEMPTION PAYMENTS WITH RESPECT TO THE NOTES.
X0-0
0. XXXXXXXXXX AT OPTION OF HOLDER.
(A) IF THERE IS A CHANGE OF CONTROL, THE COMPANY SHALL BE REQUIRED TO
MAKE AN OFFER (A "CHANGE OF CONTROL OFFER") TO REPURCHASE ALL OR ANY PART (EQUAL
TO $1,000 OR AN INTEGRAL MULTIPLE THEREOF) OF EACH HOLDER'S NOTES AT A PURCHASE
PRICE EQUAL TO 101% OF THE AGGREGATE PRINCIPAL AMOUNT THEREOF PLUS ACCRUED AND
UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE DATE OF PURCHASE
(THE "CHANGE OF CONTROL PAYMENT"). WITHIN 30 DAYS FOLLOWING ANY CHANGE OF
CONTROL, THE COMPANY SHALL MAIL A NOTICE TO EACH HOLDER SETTING FORTH THE
PROCEDURES GOVERNING THE CHANGE OF CONTROL OFFER AS REQUIRED BY THE INDENTURE.
(B) WHEN THE AGGREGATE AMOUNT OF EXCESS PROCEEDS FROM ONE OR MORE
ASSET SALES EXCEEDS $10.0 MILLION, THE COMPANY SHALL COMMENCE AN OFFER TO ALL
HOLDERS OF NOTES (AS "ASSET SALE OFFER") PURSUANT TO SECTION 3.09 OF THE
INDENTURE TO PURCHASE THE MAXIMUM PRINCIPAL AMOUNT OF NOTES (INCLUDING ANY
ADDITIONAL NOTES) THAT MAY BE PURCHASED OUT OF THE EXCESS PROCEEDS AT AN OFFER
PRICE IN CASH IN AN AMOUNT EQUAL TO 100% OF THE PRINCIPAL AMOUNT THEREOF PLUS
ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE DATE
FIXED FOR THE CLOSING OF SUCH OFFER IN ACCORDANCE WITH THE PROCEDURES SET FORTH
IN THE INDENTURE. TO THE EXTENT THAT THE AGGREGATE AMOUNT OF NOTES (INCLUDING
ANY ADDITIONAL NOTES) TENDERED PURSUANT TO AN ASSET SALE OFFER IS LESS THAN THE
EXCESS PROCEEDS, THE COMPANY (OR SUCH SUBSIDIARY) MAY USE SUCH DEFICIENCY FOR
GENERAL CORPORATE PURPOSES. IF THE AGGREGATE PRINCIPAL AMOUNT OF NOTES
SURRENDERED BY HOLDERS THEREOF EXCEEDS THE AMOUNT OF EXCESS PROCEEDS, THE
TRUSTEE SHALL SELECT THE NOTES TO BE PURCHASED ON A PRO RATA BASIS. HOLDERS OF
NOTES THAT ARE THE SUBJECT OF AN OFFER TO PURCHASE SHALL RECEIVE AN ASSET SALE
OFFER FROM THE COMPANY PRIOR TO ANY RELATED PURCHASE DATE AND MAY ELECT TO HAVE
SUCH NOTES PURCHASED BY COMPLETING THE FORM ENTITLED "OPTION OF HOLDER TO ELECT
PURCHASE" ON THE REVERSE OF THE NOTES.
8. NOTICE OF REDEMPTION. NOTICE OF REDEMPTION SHALL BE MAILED AT
LEAST 30 DAYS BUT NOT MORE THAN 60 DAYS BEFORE THE REDEMPTION DATE TO EACH
HOLDER WHOSE NOTES ARE TO BE REDEEMED AT ITS REGISTERED ADDRESS. NOTES IN
DENOMINATIONS LARGER THAN $1,000 MAY BE REDEEMED IN PART BUT ONLY IN WHOLE
MULTIPLES OF $1,000, UNLESS ALL OF THE NOTES HELD BY A HOLDER ARE TO BE
REDEEMED. ON AND AFTER THE REDEMPTION DATE INTEREST CEASES TO ACCRUE ON NOTES OR
PORTIONS THEREOF CALLED FOR REDEMPTION.
9. DENOMINATIONS, TRANSFER, EXCHANGE. THE NOTES ARE IN REGISTERED
FORM WITHOUT COUPONS IN DENOMINATIONS OF $1,000 AND INTEGRAL MULTIPLES OF
$1,000. THE TRANSFER OF NOTES MAY BE REGISTERED AND NOTES MAY BE EXCHANGED AS
PROVIDED IN THE INDENTURE. THE REGISTRAR AND THE TRUSTEE MAY REQUIRE A HOLDER,
AMONG OTHER THINGS, TO FURNISH APPROPRIATE ENDORSEMENTS AND TRANSFER DOCUMENTS
AND THE COMPANY MAY REQUIRE A HOLDER TO PAY ANY TAXES AND FEES REQUIRED BY LAW
OR PERMITTED BY THE INDENTURE. THE COMPANY NEED NOT EXCHANGE OR REGISTER THE
TRANSFER OF ANY NOTE OR PORTION OF A NOTE SELECTED FOR REDEMPTION, EXCEPT FOR
THE UNREDEEMED PORTION OF ANY NOTE BEING REDEEMED IN PART. ALSO, THE COMPANY
NEED NOT EXCHANGE OR REGISTER THE TRANSFER OF ANY NOTES FOR A PERIOD OF 15 DAYS
BEFORE A SELECTION OF NOTES TO BE REDEEMED OR DURING THE PERIOD BETWEEN A RECORD
DATE AND THE CORRESPONDING INTEREST PAYMENT DATE.
THIS REGULATION S TEMPORARY GLOBAL NOTE IS EXCHANGEABLE IN WHOLE OR
IN PART FOR ONE OR MORE GLOBAL NOTES ONLY (I) ON OR AFTER THE TERMINATION OF THE
40-DAY RESTRICTED PERIOD (AS DEFINED IN REGULATION S) AND (II) UPON PRESENTATION
OF CERTIFICATES (ACCOMPANIED BY
A2-6
AN OPINION OF COUNSEL, IF APPLICABLE) REQUIRED BY ARTICLE 2 OF THE INDENTURE.
UPON EXCHANGE OF THIS REGULATION S TEMPORARY GLOBAL NOTE FOR ONE OR MORE GLOBAL
NOTES, THE TRUSTEE SHALL CANCEL THIS REGULATION S TEMPORARY GLOBAL NOTE.
10. PERSONS DEEMED OWNERS. THE REGISTERED HOLDER OF A NOTE MAY BE
TREATED AS ITS OWNER FOR ALL PURPOSES.
11. AMENDMENT, SUPPLEMENT AND WAIVER. SUBJECT TO CERTAIN EXCEPTIONS,
THE INDENTURE OR THE NOTES MAY BE AMENDED OR SUPPLEMENTED WITH THE CONSENT OF
THE HOLDERS OF AT LEAST A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING
NOTES AND ADDITIONAL NOTES, IF ANY, VOTING AS A SINGLE CLASS, AND ANY EXISTING
DEFAULT OR COMPLIANCE WITH ANY PROVISION OF THE INDENTURE, THE SUBSIDIARY
GUARANTIES OR THE NOTES AND ADDITIONAL NOTES, IF ANY, MAY BE WAIVED WITH THE
CONSENT OF THE HOLDERS OF A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING
NOTES VOTING AS A SINGLE CLASS. WITHOUT THE CONSENT OF ANY HOLDER OF A NOTE, THE
INDENTURE OR THE NOTES MAY BE AMENDED OR SUPPLEMENTED TO CURE ANY AMBIGUITY,
DEFECT OR INCONSISTENCY, TO PROVIDE FOR UNCERTIFICATED NOTES IN ADDITION TO OR
IN PLACE OF CERTIFICATED NOTES, TO PROVIDE FOR THE ASSUMPTION OF THE COMPANY'S
OR ANY SUBSIDIARY GUARANTOR'S OBLIGATIONS TO HOLDERS OF THE NOTES IN CASE OF A
MERGER OR CONSOLIDATION, TO MAKE ANY CHANGE THAT WOULD PROVIDE ANY ADDITIONAL
RIGHTS OR BENEFITS TO THE HOLDERS OF THE NOTES OR THAT DOES NOT ADVERSELY AFFECT
THE LEGAL RIGHTS UNDER THE INDENTURE OF ANY SUCH HOLDER, OR TO COMPLY WITH THE
REQUIREMENTS OF THE SEC IN ORDER TO EFFECT OR MAINTAIN THE QUALIFICATION OF THE
INDENTURE UNDER THE TRUST INDENTURE ACT, TO PROVIDE FOR THE ISSUANCE OF
ADDITIONAL NOTES IN ACCORDANCE WITH THE LIMITATIONS SET FORTH IN THE INDENTURE,
OR TO ALLOW ANY GUARANTOR TO EXECUTE A SUPPLEMENTAL INDENTURE TO THE INDENTURE
AND/OR A SUBSIDIARY GUARANTEE WITH RESPECT TO THE NOTE.
12. DEFAULTS AND REMEDIES. EVENTS OF DEFAULT INCLUDE: (I) DEFAULT FOR
30 DAYS IN THE PAYMENT WHEN DUE OF INTEREST ON OR LIQUIDATED DAMAGES, IF ANY,
WITH RESPECT TO THE NOTES; (II) DEFAULT IN PAYMENT WHEN DUE OF PRINCIPAL OF OR
PREMIUM, IF ANY, ON THE NOTES, (III) FAILURE BY THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES TO COMPLY WITH SECTION 5.01 OF THE INDENTURE; (IV)
FAILURE BY THE COMPANY OR THE COMPANY'S RESTRICTED SUBSIDIARIES FOR 60 DAYS
AFTER NOTICE TO THE COMPANY BY THE TRUSTEE OR THE HOLDERS OF AT LEAST 25% IN
AGGREGATE PRINCIPAL AMOUNT OF THE NOTES (INCLUDING ADDITIONAL NOTES, IF ANY)
THEN OUTSTANDING VOTING AS A SINGLE CLASS TO COMPLY WITH CERTAIN OTHER
AGREEMENTS IN THE INDENTURE OR THE NOTES; (V) DEFAULT UNDER CERTAIN OTHER
AGREEMENTS RELATING TO INDEBTEDNESS OF THE COMPANY WHICH DEFAULT RESULTS IN THE
ACCELERATION OF SUCH INDEBTEDNESS PRIOR TO ITS EXPRESS MATURITY; (VI) CERTAIN
FINAL JUDGMENTS FOR THE PAYMENT OF MONEY THAT REMAIN UNDISCHARGED FOR A PERIOD
OF 90 DAYS; (VII) EXCEPT AS PERMITTED BY THE INDENTURE, ANY SUBSIDIARY GUARANTY
SHALL BE HELD IN ANY JUDICIAL PROCEEDING TO BE UNENFORCEABLE OR INVALID OR SHALL
CEASE FOR ANY REASON TO BE IN FULL FORCE AND EFFECT OR ANY SUBSIDIARY GUARANTOR
OR ANY PERSON ACTION ON ITS BEHALF SHALL DENY OR DISAFFIRM ITS OBLIGATIONS UNDER
SUCH SUBSIDIARY GUARANTOR'S SUBSIDIARY GUARANTY; AND (VIII) CERTAIN EVENTS OF
BANKRUPTCY OR INSOLVENCY WITH RESPECT TO THE COMPANY OR ANY SUBSIDIARY OR GROUP
OF SUBSIDIARIES THAT, INDIVIDUALLY OR IN THE AGGREGATE, WOULD CONSTITUTE A
SIGNIFICANT SUBSIDIARY. IF ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING, THE
TRUSTEE OR THE HOLDERS OF AT LEAST 25% IN PRINCIPAL AMOUNT OF THE THEN
OUTSTANDING NOTES MAY DECLARE ALL THE NOTES TO BE DUE AND PAYABLE; PROVIDED,
HOWEVER, THAT SO LONG AS ANY INDEBTEDNESS PERMITTED TO BE INCURRED UNDER THE
INDENTURE AS PART OF THE CREDIT FACILITIES IS OUTSTANDING, NO SUCH ACCELERATION
SHALL BE EFFECTIVE UNTIL THE EARLIER OF (I) FIVE BUSINESS DAYS AFTER THE GIVING
OF WRITTEN NOTICE TO THE COMPANY AND THE ADMINISTRATIVE
A2-7
AGENT UNDER THE CREDIT FACILITIES OF SUCH ACCELERATION OR (II) ACCELERATION OF
ANY SUCH INDEBTEDNESS UNDER THE CREDIT FACILITIES. NOTWITHSTANDING THE
FOREGOING, IN THE CASE OF AN EVENT OF DEFAULT ARISING FROM CERTAIN EVENTS OF
BANKRUPTCY OR INSOLVENCY, ALL OUTSTANDING NOTES SHALL BECOME DUE AND PAYABLE
WITHOUT FURTHER ACTION OR NOTICE. HOLDERS MAY NOT ENFORCE THE INDENTURE OR THE
NOTES EXCEPT AS PROVIDED IN THE INDENTURE. SUBJECT TO CERTAIN LIMITATIONS,
HOLDERS OF A MAJORITY IN PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES MAY
DIRECT THE TRUSTEE IN ITS EXERCISE OF ANY TRUST OR POWER. THE TRUSTEE MAY
WITHHOLD FROM HOLDERS OF THE NOTES NOTICE OF ANY CONTINUING DEFAULT OR EVENT OF
DEFAULT (EXCEPT A DEFAULT OR EVENT OF DEFAULT RELATING TO THE PAYMENT OF
PRINCIPAL OR INTEREST) IF IT DETERMINES THAT WITHHOLDING NOTICE IS IN THEIR
INTEREST. THE HOLDERS OF A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF THE NOTES
THEN OUTSTANDING BY NOTICE TO THE TRUSTEE MAY ON BEHALF OF THE HOLDERS OF ALL OF
THE NOTES WAIVE ANY EXISTING DEFAULT OR EVENT OF DEFAULT AND ITS CONSEQUENCES
UNDER THE INDENTURE EXCEPT A CONTINUING DEFAULT OR EVENT OF DEFAULT IN THE
PAYMENT OF INTEREST OR LIQUIDATED DAMAGES ON, OR THE PRINCIPAL OF, THE NOTES.
THE COMPANY IS REQUIRED TO DELIVER TO THE TRUSTEE ANNUALLY A STATEMENT REGARDING
COMPLIANCE WITH THE INDENTURE, AND THE COMPANY IS REQUIRED UPON BECOMING AWARE
OF ANY DEFAULT OR EVENT OF DEFAULT, TO DELIVER TO THE TRUSTEE A STATEMENT
SPECIFYING SUCH DEFAULT OR EVENT OF DEFAULT.
13. TRUSTEE DEALINGS WITH COMPANY. THE TRUSTEE, IN ITS INDIVIDUAL OR
ANY OTHER CAPACITY, MAY MAKE LOANS TO, ACCEPT DEPOSITS FROM, AND PERFORM
SERVICES FOR THE COMPANY OR ITS AFFILIATES, AND MAY OTHERWISE DEAL WITH THE
COMPANY OR ITS AFFILIATES, AS IF IT WERE NOT THE TRUSTEE.
14. NO RECOURSE AGAINST OTHERS. A DIRECTOR, OFFICER, EMPLOYEE,
INCORPORATOR OR STOCKHOLDER, OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR, AS
SUCH, SHALL NOT HAVE ANY LIABILITY FOR ANY OBLIGATIONS OF THE COMPANY OR THE
SUBSIDIARY GUARANTORS 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 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.
15. AUTHENTICATION. THIS NOTE SHALL NOT BE VALID UNTIL
AUTHENTICATED BY THE MANUAL SIGNATURE OF THE TRUSTEE OR AN AUTHENTICATING
AGENT.
16. ABBREVIATIONS. CUSTOMARY ABBREVIATIONS MAY BE USED IN THE NAME OF
A HOLDER OR AN ASSIGNEE, SUCH AS: TEN COM (= TENANTS IN COMMON), TEN ENT (=
TENANTS BY THE ENTIRETIES), JT TEN (= JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
AND NOT AS TENANTS IN COMMON), CUST (= CUSTODIAN), AND U/G/M/A (= UNIFORM GIFTS
TO MINORS ACT).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. IN ADDITION TO THE RIGHTS PROVIDED TO HOLDERS OF
NOTES UNDER THE INDENTURE, HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES SHALL HAVE ALL THE RIGHTS SET FORTH IN THE RIGHTS AGREEMENT
DATED AS OF MAY 28, 1999, BETWEEN THE COMPANY AND THE PARTIES NAMED ON THE
SIGNATURE PAGES THEREOF OR IN THE CASE OF ADDITIONAL NOTES, HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES SHALL HAVE THE RIGHTS
SET FORTH IN ONE OR MORE REGISTRATION RIGHTS AGREEMENTS, IF ANY, BETWEEN THE
COMPANY AND THE OTHER PARTIES THERETO, RELATING TO RIGHTS GIVEN BY THE COMPANY
TO THE PURCHASERS OF ANY ADDITIONAL NOTES (COLLECTIVELY, THE "REGISTRATION
RIGHTS AGREEMENT").
A2-8
18. 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 AND THE TRUSTEE MAY USE CUSIP NUMBERS
IN NOTICES OF REDEMPTION AS A CONVENIENCE TO HOLDERS. NO REPRESENTATION IS MADE
AS TO THE ACCURACY OF SUCH NUMBERS EITHER AS PRINTED ON THE NOTES OR AS
CONTAINED IN ANY NOTICE OF REDEMPTION AND RELIANCE MAY BE PLACED ONLY ON THE
OTHER IDENTIFICATION NUMBERS PLACED THEREON.
THE COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE AND/OR THE REGISTRATION RIGHTS AGREEMENT.
REQUESTS MAY BE MADE TO:
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
0000 XXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
ATTENTION: CHIEF FINANCIAL OFFICER
A2-9
ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
(I) OR (WE) ASSIGN AND TRANSFER THIS NOTE TO: (INSERT ASSIGNEE'S LEGAL NAME)
----------------------------------------------------------------------------
(INSERT ASSIGNEE'S SOC. SEC. OR TAX I.D. NO.)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE)
AND IRREVOCABLY APPOINT
----------------------------------------------------
TO TRANSFER THIS NOTE ON THE BOOKS OF THE COMPANY. THE AGENT MAY SUBSTITUTE
ANOTHER TO ACT FOR HIM.
DATE:
YOUR SIGNATURE:
------------------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE FACE OF THIS NOTE)
SIGNATURE GUARANTEE*:
------------------------------------------------------
* PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTEE MEDALLION PROGRAM (OR OTHER
SIGNATURE SUBSIDIARY GUARANTOR ACCEPTABLE TO THE TRUSTEE).
A2-10
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE COMPANY
PURSUANT TO SECTION 4.10 OR 4.15 OF THE INDENTURE, CHECK THE APPROPRIATE BOX
BELOW:
SECTION 4.10 SECTION 4.15
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THE NOTE PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.10 OR SECTION 4.15 OF THE INDENTURE, STATE THE
AMOUNT YOU ELECT TO HAVE PURCHASED:
$
-----------------------------
DATE:
--------------------
YOUR SIGNATURE:
-----------------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE FACE OF THIS NOTE)
TAX IDENTIFICATION NO.:
-----------
SIGNATURE GUARANTEE*:
------------------------------------------------------
* PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTEE MEDALLION PROGRAM (OR OTHER
SIGNATURE SUBSIDIARY GUARANTOR ACCEPTABLE TO THE TRUSTEE).
A2-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
THE FOLLOWING EXCHANGES OF A PART OF THIS REGULATION S TEMPORARY
GLOBAL NOTE FOR AN INTEREST IN ANOTHER GLOBAL NOTE, OR OF OTHER RESTRICTED
GLOBAL NOTES FOR AN INTEREST IN THIS REGULATION S TEMPORARY GLOBAL NOTE, HAVE
BEEN MADE:
PRINCIPAL AMOUNT
AMOUNT OF AMOUNT OF OF THIS GLOBAL NOTE SIGNATURE OF
DECREASE IN INCREASE IN FOLLOWING SUCH AUTHORIZED OFFICER
PRINCIPAL AMOUNT PRINCIPAL AMOUNT DECREASE (OR) OF TRUSTEE OR
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) NOTE CUSTODIAN
---------------- ------------------- ------------------- ------------------- ------------------
A2-12
FORM OF CERTIFICATE OF TRANSFER
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
0000 XXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
[REGISTRAR ADDRESS BLOCK]
RE: 11 1/2 % SENIOR SUBORDINATED NOTES DUE 2009
REFERENCE IS HEREBY MADE TO THE INDENTURE, DATED AS OF MAY 28, 1999
(THE "INDENTURE"), BETWEEN X.X. XXXXXX AUTOMOTIVE CASTINGS, INC., AS COMPANY
(THE "COMPANY"), AND U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE.
CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO
THEM IN THE INDENTURE.
__________________ , (THE "TRANSFEROR") OWNS AND PROPOSES TO TRANSFER
THE NOTE[S] OR INTEREST IN SUCH NOTE[S] SPECIFIED IN ANNEX A HERETO, IN THE
PRINCIPAL AMOUNT OF $___________ IN SUCH NOTE[S] OR INTERESTS (THE "TRANSFER"),
TO _________________________ (THE "TRANSFEREE"), AS FURTHER SPECIFIED IN
ANNEX A HERETO. IN CONNECTION WITH THE TRANSFER, THE TRANSFEROR HEREBY CERTIFIES
THAT:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A.
THE TRANSFER IS BEING EFFECTED PURSUANT TO AND IN ACCORDANCE WITH RULE 000X
XXXXX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, THE TRANSFEROR HEREBY FURTHER CERTIFIES THAT THE
BENEFICIAL INTEREST OR DEFINITIVE NOTE IS BEING TRANSFERRED TO A PERSON THAT
THE TRANSFEROR REASONABLY BELIEVED AND BELIEVES IS PURCHASING THE BENEFICIAL
INTEREST OR DEFINITIVE NOTE FOR ITS OWN ACCOUNT, OR FOR ONE OR MORE ACCOUNTS
WITH RESPECT TO WHICH SUCH PERSON EXERCISES SOLE INVESTMENT DISCRETION, AND
SUCH PERSON AND EACH SUCH ACCOUNT IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN
THE MEANING OF RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A AND SUCH TRANSFER IS IN COMPLIANCE WITH ANY APPLICABLE BLUE SKY
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. UPON CONSUMMATION OF THE
PROPOSED TRANSFER IN ACCORDANCE WITH THE TERMS OF THE INDENTURE, THE
TRANSFERRED BENEFICIAL INTEREST OR DEFINITIVE NOTE WILL BE SUBJECT TO THE
RESTRICTIONS ON TRANSFER ENUMERATED IN THE PRIVATE PLACEMENT LEGEND PRINTED
ON THE 144A GLOBAL NOTE AND/OR THE DEFINITIVE NOTE AND IN THE INDENTURE AND
THE SECURITIES ACT.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE TEMPORARY REGULATION S GLOBAL NOTE, THE REGULATION S GLOBAL
NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. THE TRANSFER IS BEING
EFFECTED PURSUANT TO AND IN ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE
SECURITIES ACT AND, ACCORDINGLY, THE TRANSFEROR HEREBY FURTHER CERTIFIES THAT
(I) THE TRANSFER IS NOT BEING MADE TO A PERSON INTHE UNITED STATES AND (X) AT
THE TIME THE BUY ORDER WAS ORIGINATED, THE TRANSFEREE WAS OUTSIDE THE UNITED
STATES OR SUCH TRANSFEROR AND ANY PERSON ACTING ON ITS BEHALF REASONABLY
BELIEVED AND BELIEVES THAT THE TRANSFEREE WAS OUTSIDE THE UNITED STATES OR
(Y)
B-1
THE TRANSACTION WAS EXECUTED IN, ON OR THROUGH THE FACILITIES OF A DESIGNATED
OFFSHORE SECURITIES MARKET AND NEITHER SUCH TRANSFEROR NOR ANY PERSON ACTING
ON ITS BEHALF KNOWS THAT THE TRANSACTION WAS PREARRANGED WITH A BUYER IN THE
UNITED STATES, (II) NO DIRECTED SELLING EFFORTS HAVE BEEN MADE IN
CONTRAVENTION OF THE REQUIREMENTS OF RULE 903(B) OR RULE 904(B) OF REGULATION
S UNDER THE SECURITIES ACT, (III) THE TRANSACTION IS NOT PART OF A PLAN OR
SCHEME TO EVADE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (IV)
IF THE PROPOSED TRANSFER IS BEING MADE PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD, THE TRANSFER IS NOT BEING MADE TO A U.S. PERSON OR FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON (OTHER THAN AN INITIAL PURCHASER). UPON
CONSUMMATION OF THE PROPOSED TRANSFER IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE, THE TRANSFERRED BENEFICIAL INTEREST OR DEFINITIVE NOTE WILL BE
SUBJECT TO THE RESTRICTIONS ON TRANSFER ENUMERATED IN THE PRIVATE PLACEMENT
LEGEND PRINTED ON THE REGULATION S GLOBAL NOTE, THE TEMPORARY REGULATION S
GLOBAL NOTE AND/OR THE DEFINITIVE NOTE AND IN THE INDENTURE AND THE
SECURITIES ACT.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. THE
TRANSFER IS BEING EFFECTED IN COMPLIANCE WITH THE TRANSFER RESTRICTIONS
APPLICABLE TO BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES AND PURSUANT TO AND IN ACCORDANCE WITH THE SECURITIES ACT
AND ANY APPLICABLE BLUE SKY SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND ACCORDINGLY THE TRANSFEROR HEREBY FURTHER CERTIFIES THAT (CHECK
ONE):
(A) / / SUCH TRANSFER IS BEING EFFECTED PURSUANT TO AND IN
ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT;
OR
(B) / / SUCH TRANSFER IS BEING EFFECTED TO THE COMPANY OR A
SUBSIDIARY THEREOF;
OR
(C) / / SUCH TRANSFER IS BEING EFFECTED PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE
WITH THE PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT;
OR
(D) / / SUCH TRANSFER IS BEING EFFECTED TO AN INSTITUTIONAL
ACCREDITED INVESTOR AND PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OTHER THAN RULE 144A, RULE 144 OR RULE
904, AND THE TRANSFEROR HEREBY FURTHER CERTIFIES THAT IT HAS NOT ENGAGED IN
ANY GENERAL SOLICITATION WITHIN THE MEANING OF REGULATION D UNDER THE
SECURITIES ACT AND THE TRANSFER COMPLIES WITH THE TRANSFER RESTRICTIONS
APPLICABLE TO BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE OR RESTRICTED
DEFINITIVE NOTES AND THE REQUIREMENTS OF THE EXEMPTION CLAIMED, WHICH
CERTIFICATION IS SUPPORTED BY (1) A CERTIFICATE EXECUTED BY THE TRANSFEREE IN
THE FORM OF EXHIBIT D TO THE INDENTURE AND (2) AN OPINION OF COUNSEL PROVIDED
BY THE TRANSFEROR OR THE TRANSFEREE (A COPY OF WHICH THE TRANSFEROR HAS
ATTACHED TO THIS CERTIFICATION), TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT. UPON CONSUMMATION OF THE PROPOSED
TRANSFER IN ACCORDANCE WITH THE TERMS OF
B-2
THE INDENTURE, THE TRANSFERRED BENEFICIAL INTEREST OR DEFINITIVE NOTE WILL BE
SUBJECT TO THE RESTRICTIONS ON TRANSFER ENUMERATED IN THE PRIVATE PLACEMENT
LEGEND PRINTED ON THE IAI GLOBAL NOTE AND/OR THE DEFINITIVE NOTES AND IN THE
INDENTURE AND THE SECURITIES ACT.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(A) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (I) THE
TRANSFER IS BEING EFFECTED PURSUANT TO AND IN ACCORDANCE WITH RULE 144 UNDER
THE SECURITIES ACT AND IN COMPLIANCE WITH THE TRANSFER RESTRICTIONS CONTAINED
IN THE INDENTURE AND ANY APPLICABLE BLUE SKY SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES AND (II)THE RESTRICTIONS ON TRANSFER CONTAINED IN THE
INDENTURE AND THE PRIVATE PLACEMENT LEGEND ARE NOT REQUIRED IN ORDER TO
MAINTAIN COMPLIANCE WITH THE SECURITIES ACT. UPON CONSUMMATION OF THE
PROPOSED TRANSFER IN ACCORDANCE WITH THE TERMS OF THE INDENTURE, THE
TRANSFERRED BENEFICIAL INTEREST OR DEFINITIVE NOTE WILL NO LONGER BE SUBJECT
TO THE RESTRICTIONS ON TRANSFER ENUMERATED IN THE PRIVATE PLACEMENT LEGEND
PRINTED ON THE RESTRICTED GLOBAL NOTES, ON RESTRICTED DEFINITIVE NOTES AND IN
THE INDENTURE.
(B) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (I) THE
TRANSFER IS BEING EFFECTED PURSUANT TO AND IN ACCORDANCE WITH RULE 903 OR
RULE 904 UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH THE TRANSFER
RESTRICTIONS CONTAINED IN THE INDENTURE AND ANY APPLICABLE BLUE SKY
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND (II) THE RESTRICTIONS
ON TRANSFER CONTAINED IN THE INDENTURE AND THE PRIVATE PLACEMENT LEGEND ARE
NOT REQUIRED IN ORDER TO MAINTAIN COMPLIANCE WITH THE SECURITIES ACT. UPON
CONSUMMATION OF THE PROPOSED TRANSFER IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE, THE TRANSFERRED BENEFICIAL INTEREST OR DEFINITIVE NOTE WILL NO
LONGER BE SUBJECT TO THE RESTRICTIONS ON TRANSFER ENUMERATED IN THE PRIVATE
PLACEMENT LEGEND PRINTED ON THE RESTRICTED GLOBAL NOTES, ON RESTRICTED
DEFINITIVE NOTES AND IN THE INDENTURE.
(C) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION.
(I) THE TRANSFER IS BEING EFFECTED PURSUANT TO AND IN COMPLIANCE WITH AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OTHER THAN
RULE 144, RULE 903 OR RULE 904 AND IN COMPLIANCE WITH THE TRANSFER
RESTRICTIONS CONTAINED IN THE INDENTURE AND ANY APPLICABLE BLUE SKY
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND (II) THE RESTRICTIONS
ON TRANSFER CONTAINED IN THE INDENTURE AND THE PRIVATE PLACEMENT LEGEND ARE
NOT REQUIRED IN ORDER TO MAINTAIN COMPLIANCE WITH THE SECURITIES ACT. UPON
CONSUMMATION OF THE PROPOSED TRANSFER IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE, THE TRANSFERRED BENEFICIAL INTEREST OR DEFINITIVE NOTE WILL NOT BE
SUBJECT TO THE RESTRICTIONS ON TRANSFER ENUMERATED IN THE PRIVATE PLACEMENT
LEGEND PRINTED ON THE RESTRICTED GLOBAL NOTES OR RESTRICTED DEFINITIVE NOTES
AND IN THE INDENTURE.
THIS CERTIFICATE AND THE STATEMENTS CONTAINED HEREIN ARE MADE FOR YOUR BENEFIT
AND THE BENEFIT OF THE COMPANY.
[INSERT NAME OF TRANSFEROR]
B-3
BY:
NAME:
TITLE:
DATED:
---------------
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. THE TRANSFEROR OWNS AND PROPOSES TO TRANSFER THE FOLLOWING:
[CHECK ONE OF (A) OR (B)]
(A) / / A BENEFICIAL INTEREST IN THE:
(I) / / 144A GLOBAL NOTE (CUSIP 466-20Q-AA3), OR
(II) / / REGULATION S GLOBAL NOTE (CUSIP UO9-667-AA1); OR
(III) / / IAI GLOBAL NOTE (CUSIP ); OR
(B) / / A RESTRICTED DEFINITIVE NOTE.
2. AFTER THE TRANSFER THE TRANSFEREE WILL HOLD:
[CHECK ONE]
(A) / / A BENEFICIAL INTEREST IN THE:
(I) / / 144A GLOBAL NOTE (CUSIP 466-20Q-AA3), OR
(II) / / REGULATION S GLOBAL NOTE (CUSIP UO9-667-AA1), OR
(III) / / IAI GLOBAL NOTE (CUSIP ); OR
(IV) / / UNRESTRICTED GLOBAL NOTE (CUSIP ); OR
(B) / / A RESTRICTED DEFINITIVE NOTE; OR
(C) / / AN UNRESTRICTED DEFINITIVE NOTE,
IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
0000 XXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
[REGISTRAR ADDRESS BLOCK]
RE: 11 1/2% SENIOR SUBORDINATED NOTES DUE 2009
(CUSIP ____________)
REFERENCE IS HEREBY MADE TO THE INDENTURE, DATED AS OF MAY 28, 1999
(THE "INDENTURE"), BETWEEN X.X. XXXXXX AUTOMOTIVE CASTINGS, INC., AS COMPANY
(THE "COMPANY"), AND U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE.
CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO
THEM IN THE INDENTURE.
___________________, (THE "OWNER") OWNS AND PROPOSES TO EXCHANGE THE
NOTE[S] OR INTEREST IN SUCH NOTE[S] SPECIFIED HEREIN, IN THE PRINCIPAL AMOUNT OF
______________ IN SUCH NOTE[S] OR INTERESTS (THE "EXCHANGE"). IN CONNECTION WITH
THE EXCHANGE, THE OWNER HEREBY CERTIFIES THAT:
0.XXXXXXXX OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(A)/ /CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. IN
CONNECTION WITH THE EXCHANGE OF THE OWNER'S BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE IN AN EQUAL
PRINCIPAL AMOUNT, THE OWNER HEREBY CERTIFIES (I) THE BENEFICIAL INTEREST IS
BEING ACQUIRED FOR THE OWNER'S OWN ACCOUNT WITHOUT TRANSFER, (II) SUCH EXCHANGE
HAS BEEN EFFECTED IN COMPLIANCE WITH THE TRANSFER RESTRICTIONS APPLICABLE TO THE
GLOBAL NOTES AND PURSUANT TO AND IN ACCORDANCE WITH THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), (III) THE
RESTRICTIONS ON TRANSFER CONTAINED IN THE INDENTURE AND THE PRIVATE PLACEMENT
LEGEND ARE NOT REQUIRED IN ORDER TO MAINTAIN COMPLIANCE WITH THE SECURITIES ACT
AND (IV) THE BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE IS BEING
ACQUIRED IN COMPLIANCE WITH ANY APPLICABLE BLUE SKY SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES.
(B)/ /CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. IN CONNECTION WITH THE
EXCHANGE OF THE OWNER'S BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE FOR AN
UNRESTRICTED DEFINITIVE NOTE, THE OWNER HEREBY CERTIFIES (I) THE DEFINITIVE NOTE
IS BEING ACQUIRED FOR THE OWNER'S OWN ACCOUNT WITHOUT TRANSFER, (II) SUCH
EXCHANGE HAS BEEN EFFECTED IN COMPLIANCE WITH THE TRANSFER RESTRICTIONS
APPLICABLE TO THE RESTRICTED GLOBAL NOTES AND PURSUANT TO AND IN ACCORDANCE WITH
THE SECURITIES ACT, (III) THE RESTRICTIONS ON TRANSFER CONTAINED IN THE
INDENTURE AND THE PRIVATE PLACEMENT LEGEND ARE NOT REQUIRED IN ORDER TO MAINTAIN
COMPLIANCE WITH THE SECURITIES ACT AND (IV) THE DEFINITIVE NOTE IS BEING
ACQUIRED IN
C-1
EXHIBIT C
COMPLIANCE WITH ANY APPLICABLE BLUE SKY SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
(C)/ /CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. IN CONNECTION WITH THE
OWNER'S EXCHANGE OF A RESTRICTED DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE, THE OWNER HEREBY CERTIFIES (I) THE BENEFICIAL INTEREST
IS BEING ACQUIRED FOR THE OWNER'S OWN ACCOUNT WITHOUT TRANSFER, (II) SUCH
EXCHANGE HAS BEEN EFFECTED IN COMPLIANCE WITH THE TRANSFER RESTRICTIONS
APPLICABLE TO RESTRICTED DEFINITIVE NOTES AND PURSUANT TO AND IN ACCORDANCE WITH
THE SECURITIES ACT, (III) THE RESTRICTIONS ON TRANSFER CONTAINED IN THE
INDENTURE AND THE PRIVATE PLACEMENT LEGEND ARE NOT REQUIRED IN ORDER TO MAINTAIN
COMPLIANCE WITH THE SECURITIES ACT AND (IV) THE BENEFICIAL INTEREST IS BEING
ACQUIRED IN COMPLIANCE WITH ANY APPLICABLE BLUE SKY SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES.
(D)/ /CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. IN CONNECTION WITH THE OWNER'S EXCHANGE OF A
RESTRICTED DEFINITIVE NOTE FOR AN UNRESTRICTED DEFINITIVE NOTE, THE OWNER HEREBY
CERTIFIES (I) THE UNRESTRICTED DEFINITIVE NOTE IS BEING ACQUIRED FOR THE OWNER'S
OWN ACCOUNT WITHOUT TRANSFER, (II) SUCH EXCHANGE HAS BEEN EFFECTED IN COMPLIANCE
WITH THE TRANSFER RESTRICTIONS APPLICABLE TO RESTRICTED DEFINITIVE NOTES AND
PURSUANT TO AND IN ACCORDANCE WITH THE SECURITIES ACT, (III) THE RESTRICTIONS ON
TRANSFER CONTAINED IN THE INDENTURE AND THE PRIVATE PLACEMENT LEGEND ARE NOT
REQUIRED IN ORDER TO MAINTAIN COMPLIANCE WITH THE SECURITIES ACT AND (IV) THE
UNRESTRICTED DEFINITIVE NOTE IS BEING ACQUIRED IN COMPLIANCE WITH ANY APPLICABLE
BLUE SKY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
0.XXXXXXXX OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(A)/ /CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. IN CONNECTION WITH THE
EXCHANGE OF THE OWNER'S BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE FOR A
RESTRICTED DEFINITIVE NOTE WITH AN EQUAL PRINCIPAL AMOUNT, THE OWNER HEREBY
CERTIFIES THAT THE RESTRICTED DEFINITIVE NOTE IS BEING ACQUIRED FOR THE OWNER'S
OWN ACCOUNT WITHOUT TRANSFER. UPON CONSUMMATION OF THE PROPOSED EXCHANGE IN
ACCORDANCE WITH THE TERMS OF THE INDENTURE, THE RESTRICTED DEFINITIVE NOTE
ISSUED WILL CONTINUE TO BE SUBJECT TO THE RESTRICTIONS ON TRANSFER ENUMERATED IN
THE PRIVATE PLACEMENT LEGEND PRINTED ON THE RESTRICTED DEFINITIVE NOTE AND IN
THE INDENTURE AND THE SECURITIES ACT.
(B)CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. IN CONNECTION WITH THE
EXCHANGE OF THE OWNER'S RESTRICTED DEFINITIVE NOTE FOR A BENEFICIAL INTEREST
IN THE [CHECK ONE] / / 144A GLOBAL NOTE, / / REGULATION S GLOBAL NOTE,
/ / IAI GLOBAL NOTE WITH AN EQUAL PRINCIPAL AMOUNT, THE OWNER HEREBY CERTIFIES
(I) THE BENEFICIAL INTEREST IS BEING ACQUIRED FOR THE OWNER'S OWN ACCOUNT
WITHOUT TRANSFER AND (II) SUCH EXCHANGE HAS BEEN EFFECTED IN COMPLIANCE WITH
THE TRANSFER RESTRICTIONS APPLICABLE TO THE RESTRICTED GLOBAL NOTES AND
PURSUANT TO AND IN ACCORDANCE WITH THE SECURITIES ACT, AND IN COMPLIANCE WITH
ANY APPLICABLE BLUE SKY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
UPON CONSUMMATION OF THE PROPOSED EXCHANGE IN ACCORDANCE WITH THE TERMS OF
THE INDENTURE, THE BENEFICIAL INTEREST ISSUED WILL BE SUBJECT TO THE
RESTRICTIONS ON TRANSFER ENUMERATED IN THE PRIVATE PLACEMENT.
C-2
EXHIBIT C
LEGEND PRINTED ON THE RELEVANT RESTRICTED GLOBAL NOTE AND IN THE INDENTURE AND
THE SECURITIES ACT.
C-3
THIS CERTIFICATE AND THE STATEMENTS CONTAINED HEREIN ARE MADE FOR YOUR BENEFIT
AND THE BENEFIT OF THE COMPANY.
[INSERT NAME OF TRANSFEROR]
BY:
NAME:
TITLE:
DATED:
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
0000 XXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
[REGISTRAR ADDRESS BLOCK]
RE: 11 1/2% SENIOR SUBORDINATED NOTES DUE 2009
REFERENCE IS HEREBY MADE TO THE INDENTURE, DATED AS OF MAY 28 (THE
"INDENTURE"), BETWEEN X.X. XXXXXX AUTOMOTIVE CASTINGS, INC., AS COMPANY (THE
"COMPANY"), AND U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE. CAPITALIZED
TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE
INDENTURE.
IN CONNECTION WITH OUR PROPOSED PURCHASE OF $______________ AGGREGATE
PRINCIPAL AMOUNT OF:
(A) / / A BENEFICIAL INTEREST IN A GLOBAL NOTE, OR
(B) / / A DEFINITIVE NOTE,
WE CONFIRM THAT:
1. WE UNDERSTAND THAT ANY SUBSEQUENT TRANSFER OF THE NOTES OR ANY
INTEREST THEREIN IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN
THE INDENTURE AND THE UNDERSIGNED AGREES TO BE BOUND BY, AND NOT TO RESELL,
PLEDGE OR OTHERWISE TRANSFER THE NOTES OR ANY INTEREST THEREIN EXCEPT IN
COMPLIANCE WITH, SUCH RESTRICTIONS AND CONDITIONS AND THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
2. WE UNDERSTAND THAT THE OFFER AND SALE OF THE NOTES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT, AND THAT THE NOTES AND ANY INTEREST THEREIN
MAY NOT BE OFFERED OR SOLD EXCEPT AS PERMITTED IN THE FOLLOWING SENTENCE. WE
AGREE, ON OUR OWN BEHALF AND ON BEHALF OF ANY ACCOUNTS FOR WHICH WE ARE ACTING
AS HEREINAFTER STATED, THAT IF WE SHOULD SELL THE NOTES OR ANY INTEREST THEREIN,
WE WILL DO SO ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) IN
ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT TO A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED THEREIN), (C) 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 YOU AND TO THE COMPANY A SIGNED LETTER
SUBSTANTIALLY IN THE FORM OF THIS LETTER AND AN OPINION OF COUNSEL IN FORM
REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN ACCORDANCE
WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
PROVISIONS OF RULE 144(K) UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND WE FURTHER AGREE
TO PROVIDE TO ANY PERSON PURCHASING THE DEFINITIVE NOTE OR BENEFICIAL INTEREST
IN A GLOBAL NOTE FROM US IN A TRANSACTION MEETING THE REQUIREMENTS OF CLAUSES
(A) THROUGH (E) OF THIS PARAGRAPH A NOTICE ADVISING SUCH PURCHASER THAT RESALES
THEREOF ARE RESTRICTED AS STATED HEREIN.
D-1
EXHIBIT D
3. WE UNDERSTAND THAT, ON ANY PROPOSED RESALE OF THE NOTES OR
BENEFICIAL INTEREST THEREIN, WE WILL BE REQUIRED TO FURNISH TO YOU AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS AND OTHER INFORMATION AS YOU 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.
4. WE ARE AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) AND HAVE
SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS AS TO BE CAPABLE
OF EVALUATING THE MERITS AND RISKS OF OUR INVESTMENT IN THE NOTES, AND WE AND
ANY ACCOUNTS FOR WHICH WE ARE ACTING ARE EACH ABLE TO BEAR THE ECONOMIC RISK OF
OUR OR ITS INVESTMENT.
5. WE ARE ACQUIRING THE NOTES OR BENEFICIAL INTEREST THEREIN
PURCHASED BY US FOR OUR OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS (EACH OF WHICH
IS AN INSTITUTIONAL "ACCREDITED INVESTOR") AS TO EACH OF WHICH WE EXERCISE SOLE
INVESTMENT DISCRETION.
YOU AND THE COMPANY ARE ENTITLED TO RELY UPON THIS LETTER AND ARE
IRREVOCABLY AUTHORIZED TO PRODUCE THIS LETTER OR A COPY HEREOF TO ANY INTERESTED
PARTY IN ANY ADMINISTRATIVE OR LEGAL PROCEEDINGS OR OFFICIAL INQUIRY WITH
RESPECT TO THE MATTERS COVERED HEREBY.
[INSERT NAME OF ACCREDITED INVESTOR]
BY:
NAME:
TITLE:
DATED:
D-2
EXHIBIT E
[FORM OF NOTATION OF GUARANTY]
FOR VALUE RECEIVED, EACH OF THE UNDERSIGNED, AS A SUBSIDIARY GUARANTOR
(WHICH TERM INCLUDES ANY SUCCESSOR PERSON UNDER THE INDENTURE) HAS, JOINTLY AND
SEVERALLY, UNCONDITIONALLY GUARANTEED, TO THE EXTENT SET FORTH IN THE INDENTURE
DATED AS OF MAY 28, 1999 (THE "INDENTURE") AMONG X.X. XXXXXX AUTOMOTIVE
CASTINGS, INC., THE UNDERSIGNED THERETO AND U.S. BANK TRUST NATIONAL
ASSOCIATION, AS TRUSTEE (THE "TRUSTEE") AND SUBJECT TO THE PROVISIONS IN THE
INDENTURE, (A) THE DUE AND PUNCTUAL PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF
ANY, AND INTEREST ON THE NOTES (AS DEFINED IN THE INDENTURE), WHETHER AT
MATURITY, BY ACCELERATION, REDEMPTION OR OTHERWISE, THE DUE AND PUNCTUAL PAYMENT
OF INTEREST ON OVERDUE PRINCIPAL AND PREMIUM, AND, TO THE EXTENT PERMITTED BY
LAW, INTEREST, AND THE DUE AND PUNCTUAL PERFORMANCE OF ALL OTHER OBLIGATIONS OF
THE COMPANY TO THE HOLDERS OR THE TRUSTEE, ALL IN ACCORDANCE WITH THE TERMS OF
THE INDENTURE AND (B) IN CASE OF ANY EXTENSION OF TIME OF PAYMENT OR RENEWAL OF
ANY NOTES OR ANY OF SUCH OTHER OBLIGATIONS, THAT THE SAME WILL BE PROMPTLY PAID
IN FULL WHEN DUE OR PERFORMED IN ACCORDANCE WITH THE TERMS OF THE EXTENSION OR
RENEWAL, WHETHER AT STATED MATURITY, BY ACCELERATION OR OTHERWISE. THE
OBLIGATIONS OF THE SUBSIDIARY GUARANTORS TO THE HOLDERS OF NOTES AND TO THE
TRUSTEE PURSUANT TO THE SUBSIDIARY GUARANTY AND THE INDENTURE ARE EXPRESSLY SET
FORTH IN ARTICLE 11 OF THE INDENTURE AND REFERENCE IS HEREBY MADE TO THE
INDENTURE FOR THE PRECISE TERMS OF THE SUBSIDIARY GUARANTY. EACH HOLDER OF A
NOTE, BY ACCEPTING THE SAME (A) AGREES TO AND SHALL BE BOUND BY SUCH PROVISIONS,
(B) AUTHORIZES AND DIRECTS THE TRUSTEE, ON BEHALF OF SUCH HOLDER, TO TAKE SUCH
ACTION AS MAY BE NECESSARY OR APPROPRIATE TO EFFECTUATE THE SUBORDINATION AS
PROVIDED IN THE INDENTURE AND (C) APPOINTS THE TRUSTEE ATTORNEY-IN-FACT OF SUCH
HOLDER FOR SUCH PURPOSE; PROVIDED, HOWEVER, THAT THE INDEBTEDNESS EVIDENCED BY
THIS SUBSIDIARY GUARANTY SHALL CEASE TO BE SO SUBORDINATED AND SUBJECT IN RIGHT
OF PAYMENT UPON ANY DEFEASANCE OF THIS NOTE IN ACCORDANCE WITH THE PROVISIONS OF
THE INDENTURE.
FRENCH HOLDINGS, INC.
BY:
-------------------
NAME:
TITLE:
ALLOTECH INTERNATIONAL,
INC.
BY:
-------------------
NAME:
TITLE:
X.X.XXXXXX CORPORATION
BY:
-------------------
NAME:
TITLE:
E-1
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS]
SUPPLEMENTAL INDENTURE (THIS "SUPPLEMENTAL INDENTURE"), DATED AS OF
_________________, AMONG _________________ (THE "GUARANTEEING SUBSIDIARY"), A
SUBSIDIARY OF X.X. XXXXXX AUTOMOTIVE CASTINGS, INC. (OR ITS PERMITTED
SUCCESSOR), A DELAWARE CORPORATION (THE "COMPANY"), THE COMPANY, THE OTHER
SUBSIDIARY GUARANTORS (AS DEFINED IN THE INDENTURE REFERRED TO HEREIN) AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE INDENTURE REFERRED
TO BELOW (THE "TRUSTEE").
W I T N E S S E T H
WHEREAS, THE COMPANY HAS HERETOFORE EXECUTED AND DELIVERED TO THE
TRUSTEE AN INDENTURE (THE "INDENTURE"), DATED AS OF MAY 28, 1999 PROVIDING
FOR THE ISSUANCE OF THE COMPANY'S 11 1/2% SENIOR SUBORDINATEd NOTES DUE 2009
(THE "NOTES");
WHEREAS, THE INDENTURE PROVIDES THAT UNDER CERTAIN CIRCUMSTANCES THE
GUARANTEEING SUBSIDIARY SHALL EXECUTE AND DELIVER TO THE TRUSTEE A
SUPPLEMENTAL INDENTURE PURSUANT TO WHICH THE GUARANTEEING SUBSIDIARY SHALL
UNCONDITIONALLY GUARANTEE ALL OF THE COMPANY'S OBLIGATIONS UNDER THE NOTES
AND THE INDENTURE ON THE TERMS AND CONDITIONS SET FORTH HEREIN (THE "NOTE
GUARANTY"); AND
WHEREAS, PURSUANT TO SECTION 9.01 OF THE INDENTURE, THE TRUSTEE IS
AUTHORIZED TO EXECUTE AND DELIVER THIS SUPPLEMENTAL INDENTURE.
NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE
GUARANTEEING SUBSIDIARY AND THE TRUSTEE MUTUALLY COVENANT AND AGREE FOR THE
EQUAL AND RATABLE BENEFIT OF THE HOLDERS OF THE NOTES AS FOLLOWS:
1.CAPITALIZED TERMS. CAPITALIZED TERMS USED HEREIN WITHOUT
DEFINITION SHALL HAVE THE MEANINGS ASSIGNED TO THEM IN THE INDENTURE.
2.AGREEMENT TO GUARANTEE. THE GUARANTEEING SUBSIDIARY HEREBY
AGREES AS FOLLOWS:
(A)ALONG WITH ALL SUBSIDIARY GUARANTORS NAMED IN THE
INDENTURE, TO JOINTLY AND SEVERALLY GUARANTY TO EACH HOLDER OF A
NOTE AUTHENTICATED AND DELIVERED BY THE TRUSTEE AND TO THE TRUSTEE
AND ITS SUCCESSORS AND ASSIGNS, THE NOTES OR THE OBLIGATIONS OF THE
COMPANY HEREUNDER OR THEREUNDER, THAT:
(I)THE PRINCIPAL OF AND INTEREST ON THE NOTES WILL BE
PROMPTLY PAID IN FULL WHEN DUE, WHETHER AT MATURITY, BY
ACCELERATION, REDEMPTION OR OTHERWISE, AND INTEREST ON THE
OVERDUE PRINCIPAL OF AND INTEREST ON THE NOTES, IF ANY, IF
LAWFUL, AND ALL OTHER OBLIGATIONS OF THE COMPANY TO THE
HOLDERS OR THE TRUSTEE HEREUNDER OR THEREUNDER WILL BE
PROMPTLY PAID IN FULL OR PERFORMED, ALL IN ACCORDANCE WITH
THE TERMS HEREOF AND THEREOF; AND
(II)IN CASE OF ANY EXTENSION OF TIME OF PAYMENT OR
RENEWAL OF ANY NOTES
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OR ANY OF SUCH OTHER OBLIGATIONS, THAT SAME WILL BE PROMPTLY PAID
IN FULL WHEN DUE OR PERFORMED IN ACCORDANCE WITH THE TERMS OF THE
EXTENSION OR RENEWAL, WHETHER AT STATED MATURITY, BY ACCELERATION
OR OTHERWISE. FAILING PAYMENT WHEN DUE OF ANY AMOUNT SO GUARANTEED
OR ANY PERFORMANCE SO GUARANTEED FOR WHATEVER REASON, THE
SUBSIDIARY GUARANTORS SHALL BE JOINTLY AND SEVERALLY OBLIGATED TO
PAY THE SAME IMMEDIATELY.
(B)THE OBLIGATIONS HEREUNDER SHALL BE UNCONDITIONAL,
IRRESPECTIVE OF THE VALIDITY, REGULARITY OR ENFORCEABILITY OF THE
NOTES OR THE 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, THE RECOVERY OF ANY
JUDGMENT AGAINST THE COMPANY, ANY ACTION TO ENFORCE THE SAME OR
ANY OTHER CIRCUMSTANCE WHICH MIGHT OTHERWISE CONSTITUTE A LEGAL OR
EQUITABLE DISCHARGE OR DEFENSE OF A GUARANTOR.
(C)THE FOLLOWING IS HEREBY WAIVED: 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
PROCEEDING FIRST AGAINST THE COMPANY, PROTEST, NOTICE AND ALL
DEMANDS WHATSOEVER.
(D)THIS NOTE GUARANTY SHALL NOT BE DISCHARGED EXCEPT BY
COMPLETE PERFORMANCE OF THE OBLIGATIONS CONTAINED IN THE NOTES
AND THE INDENTURE, AND THE GUARANTEEING SUBSIDIARY ACCEPTS ALL
OBLIGATIONS OF A SUBSIDIARY GUARANTOR UNDER THE INDENTURE.
(E)IF ANY HOLDER OR THE TRUSTEE IS REQUIRED BY ANY COURT OR
OTHERWISE TO RETURN TO THE COMPANY, THE SUBSIDIARY GUARANTORS, OR
ANY CUSTODIAN, TRUSTEE, LIQUIDATOR OR OTHER SIMILAR OFFICIAL
ACTING IN RELATION TO EITHER THE COMPANY OR THE SUBSIDIARY
GUARANTORS, ANY AMOUNT PAID BY EITHER TO THE TRUSTEE OR SUCH
HOLDER, THIS NOTE GUARANTY, TO THE EXTENT THERETOFORE DISCHARGED,
SHALL BE REINSTATED IN FULL FORCE AND EFFECT.
(F)THE GUARANTEEING SUBSIDIARY SHALL NOT BE ENTITLED TO ANY
RIGHT OF SUBROGATION IN RELATION TO THE HOLDERS IN RESPECT OF ANY
OBLIGATIONS GUARANTEED HEREBY UNTIL PAYMENT IN FULL OF ALL
OBLIGATIONS GUARANTEED HEREBY.
(G)AS BETWEEN THE SUBSIDIARY GUARANTORS, ON THE ONE HAND,
AND THE HOLDERS AND THE TRUSTEE, ON THE OTHER HAND, (X) THE
MATURITY OF THE OBLIGATIONS GUARANTEED HEREBY MAY BE ACCELERATED
AS PROVIDED IN ARTICLE 6 OF THE INDENTURE FOR THE PURPOSES OF
THIS NOTE GUARANTY, NOTWITHSTANDING ANY STAY, INJUNCTION OR OTHER
PROHIBITION PREVENTING SUCH ACCELERATION IN RESPECT OF THE
OBLIGATIONS GUARANTEED HEREBY, AND (Y) IN THE EVENT OF ANY
DECLARATION OF ACCELERATION OF SUCH OBLIGATIONS AS PROVIDED IN
ARTICLE 6 OF THE INDENTURE, SUCH OBLIGATIONS (WHETHER OR NOT DUE
AND PAYABLE) SHALL FORTHWITH BECOME DUE AND PAYABLE BY THE
SUBSIDIARY GUARANTORS FOR THE PURPOSE OF THIS NOTE GUARANTY.
(H)THE SUBSIDIARY GUARANTORS SHALL HAVE THE RIGHT TO SEEK
CONTRIBUTION FROM ANY NON-PAYING SUBSIDIARY GUARANTOR SO LONG AS
THE EXERCISE OF SUCH RIGHT DOES NOT IMPAIR THE RIGHTS OF THE
HOLDERS
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(I)PURSUANT TO SECTION 11.03 OF THE INDENTURE, AFTER
GIVING EFFECT TO ANY MAXIMUM AMOUNT AND ANY OTHER CONTINGENT AND
FIXED LIABILITIES THAT ARE RELEVANT UNDER ANY APPLICABLE
BANKRUPTCY OR FRAUDULENT CONVEYANCE LAWS, AND AFTER GIVING EFFECT
TO ANY COLLECTIONS FROM, RIGHTS TO RECEIVE CONTRIBUTION FROM OR
PAYMENTS MADE BY OR ON BEHALF OF ANY OTHER SUBSIDIARY GUARANTOR IN
RESPECT OF THE OBLIGATIONS OF SUCH OTHER SUBSIDIARY GUARANTOR
UNDER ARTICLE 11 OF THE INDENTURE, THIS NEW NOTE GUARANTY SHALL BE
LIMITED TO THE MAXIMUM AMOUNT PERMISSIBLE SUCH THAT THE
OBLIGATIONS OF SUCH SUBSIDIARY GUARANTOR UNDER THIS NOTE GUARANTY
WILL NOT CONSTITUTE A FRAUDULENT TRANSFER OR CONVEYANCE.
(J)THE OBLIGATIONS OF EACH SUBSIDIARY GUARANTOR
HEREUNDER AND UNDER ARTICLE 11 OF THE INDENTURE SHALL BE JUNIOR
AND SUBORDINATED IN RIGHT OF PAYMENT TO ANY SENIOR DEBT OF SUCH
SUBSIDIARY GUARANTOR AS PROVIDED IN SECTION 11.02 OF THE INDENTURE.
3.EXECUTION AND DELIVERY. EACH GUARANTEEING SUBSIDIARY AGREES
THAT THE NOTE GUARANTIES SHALL REMAIN IN FULL FORCE AND EFFECT
NOTWITHSTANDING ANY FAILURE TO ENDORSE ON EACH NOTE A NOTATION OF SUCH
NOTE GUARANTY.
4.GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(A)THE GUARANTEEING SUBSIDIARY MAY NOT CONSOLIDATE WITH OR
MERGE WITH OR INTO (WHETHER OR NOT SUCH SUBSIDIARY GUARANTOR IS
THE SURVIVING PERSON) ANOTHER CORPORATION, PERSON OR ENTITY
WHETHER OR NOT AFFILIATED WITH SUCH SUBSIDIARY GUARANTOR UNLESS:
(I)SUBJECT TO SECTIONS 11.04 AND 11.05 OF THE
INDENTURE, THE PERSON FORMED BY OR SURVIVING ANY SUCH
CONSOLIDATION OR MERGER (IF OTHER THAN A SUBSIDIARY
GUARANTOR OR THE COMPANY) UNCONDITIONALLY ASSUMES ALL THE
OBLIGATIONS OF SUCH SUBSIDIARY GUARANTOR, PURSUANT TO A
SUPPLEMENTAL INDENTURE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE TRUSTEE, UNDER THE NOTES, THE INDENTURE
AND THE NOTE GUARANTY ON THE TERMS SET FORTH HEREIN OR
THEREIN; AND
(II)IMMEDIATELY AFTER GIVING EFFECT TO SUCH TRANSACTION,
NO DEFAULT OR EVENT OF DEFAULT EXISTS.
(B)IN CASE OF ANY SUCH CONSOLIDATION, MERGER, SALE OR
CONVEYANCE AND UPON THE ASSUMPTION BY THE SUCCESSOR CORPORATION,
BY SUPPLEMENTAL INDENTURE, EXECUTED AND DELIVERED TO THE TRUSTEE
AND SATISFACTORY IN FORM TO THE TRUSTEE, OF THE NOTE GUARANTY
ENDORSED UPON THE NOTES AND THE DUE AND PUNCTUAL PERFORMANCE OF
ALL OF THE COVENANTS AND CONDITIONS OF THE INDENTURE TO BE
PERFORMED BY THE SUBSIDIARY GUARANTOR, SUCH SUCCESSOR CORPORATION
SHALL SUCCEED TO AND BE SUBSTITUTED FOR THE SUBSIDIARY GUARANTOR
WITH THE SAME EFFECT AS IF IT HAD BEEN NAMED HEREIN AS A
GUARANTOR. SUCH SUCCESSOR CORPORATION THEREUPON MAY CAUSE TO BE
SIGNED ANY OR ALL OF THE NOTE GUARANTIES TO BE ENDORSED UPON ALL
OF THE NOTES ISSUABLE HEREUNDER WHICH THERETOFORE SHALL NOT HAVE
BEEN SIGNED BY THE COMPANY AND DELIVERED TO THE TRUSTEE. ALL THE
NOTE GUARANTIES SO ISSUED SHALL IN ALL RESPECTS HAVE THE SAME
LEGAL RANK AND BENEFIT UNDER THE INDENTURE AS THE NOTE GUARANTIES
THERETOFORE AND THEREAFTER ISSUED IN ACCORDANCE WITH THE TERMS OF
THE INDENTURE AS THOUGH ALL OF SUCH NOTE GUARANTIES HAD BEEN
ISSUED AT THE DATE OF THE EXECUTION HEREOF.
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(C)EXCEPT AS SET FORTH IN ARTICLES 4 AND 5 OF THE INDENTURE,
AND NOTWITHSTANDING CLAUSES (A) AND (B) ABOVE, NOTHING CONTAINED
IN THE INDENTURE OR IN ANY OF THE NOTES SHALL PREVENT ANY
CONSOLIDATION OR MERGER OF A SUBSIDIARY GUARANTOR WITH OR INTO
THE COMPANY OR ANOTHER SUBSIDIARY GUARANTOR, OR SHALL PREVENT ANY
SALE OR CONVEYANCE OF THE PROPERTY OF A SUBSIDIARY GUARANTOR AS
AN ENTIRETY OR SUBSTANTIALLY AS AN ENTIRETY TO THE COMPANY OR
ANOTHER SUBSIDIARY GUARANTOR.
5.RELEASES.
(A)IN THE EVENT OF A SALE OR OTHER DISPOSITION OF ALL OF THE
ASSETS OF ANY SUBSIDIARY GUARANTOR, BY WAY OF MERGER,
CONSOLIDATION OR OTHERWISE, OR A SALE OR OTHER DISPOSITION OF ALL
TO THE CAPITAL STOCK OF ANY SUBSIDIARY GUARANTOR, IN EACH CASE TO
A PERSON THAT IS NOT (EITHER BEFORE OR AFTER GIVING EFFECT TO
SUCH TRANSACTION) A RESTRICTED SUBSIDIARY OF THE COMPANY, THEN
SUCH SUBSIDIARY GUARANTOR (IN THE EVENT OF A SALE OR OTHER
DISPOSITION, BY WAY OF MERGER, CONSOLIDATION OR OTHERWISE, OF ALL
OF THE CAPITAL STOCK OF SUCH SUBSIDIARY GUARANTOR) OR THE
CORPORATION ACQUIRING THE PROPERTY (IN THE EVENT OF A SALE OR
OTHER DISPOSITION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF
SUCH SUBSIDIARY GUARANTOR) WILL BE RELEASED AND RELIEVED OF ANY
OBLIGATIONS UNDER ITS NOTE GUARANTY; PROVIDED THAT THE NET
PROCEEDS OF SUCH SALE OR OTHER DISPOSITION ARE APPLIED IN
ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE INDENTURE,
INCLUDING WITHOUT LIMITATION SECTION 4.10 OF THE INDENTURE. UPON
DELIVERY BY THE COMPANY TO THE TRUSTEE OF AN OFFICERS'
CERTIFICATE AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH
SALE OR OTHER DISPOSITION WAS MADE BY THE COMPANY IN ACCORDANCE
WITH THE PROVISIONS OF THE INDENTURE, INCLUDING WITHOUT
LIMITATION SECTION 4.10 OF THE INDENTURE, THE TRUSTEE SHALL
EXECUTE ANY DOCUMENTS REASONABLY REQUIRED IN ORDER TO EVIDENCE
THE RELEASE OF ANY SUBSIDIARY GUARANTOR FROM ITS OBLIGATIONS
UNDER ITS NOTE GUARANTY.
(B)ANY SUBSIDIARY GUARANTOR NOT RELEASED FROM ITS
OBLIGATIONS UNDER ITS NOTE GUARANTY SHALL REMAIN LIABLE FOR THE
FULL AMOUNT OF PRINCIPAL OF AND INTEREST ON THE NOTES AND FOR THE
OTHER OBLIGATIONS OF ANY SUBSIDIARY GUARANTOR UNDER THE INDENTURE
AS PROVIDED IN ARTICLE 11 OF THE INDENTURE.
0.XX RECOURSE AGAINST OTHERS. NO PAST, PRESENT OR FUTURE DIRECTOR,
OFFICER, EMPLOYEE, INCORPORATOR, STOCKHOLDER OR AGENT OF THE
GUARANTEEING SUBSIDIARY, AS SUCH, SHALL HAVE ANY LIABILITY FOR ANY
OBLIGATIONS OF THE COMPANY OR ANY GUARANTEEING SUBSIDIARY UNDER THE
NOTES, ANY NOTE, GUARANTIES, THE INDENTURE OR THIS SUPPLEMENTAL
INDENTURE OR FOR ANY CLAIM BASED ON, IN RESPECT OF, OR BY REASON OF,
SUCH OBLIGATIONS OR THEIR CREATION. EACH OF THE NOTES BY ACCEPTING A
NOTE WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER AND RELEASE ARE
PART OF THE CONSIDERATION FOR ISSUANCE OF THE NOTES. SUCH WAIVER MAY NOT
BE EFFECTIVE TO WAIVE LIABILITIES UNDER THE FEDERAL SECURITIES LAWS AND
IT IS THE VIEW OF THE SEC THAT SUCH A WAIVER IS AGAINST PUBLIC POLICY.
7.NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
8.COUNTERPARTS THE PARTIES MAY SIGN ANY NUMBER OF COPIES OF THIS
SUPPLEMENTAL
F-4
INDENTURE. EACH SIGNED COPY SHALL BE AN ORIGINAL, BUT ALL OF THEM TOGETHER
REPRESENT THE SAME AGREEMENT.
9.EFFECT OF HEADINGS. THE SECTION HEADINGS HEREIN ARE FOR
CONVENIENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION HEREOF.
10.THE TRUSTEE. THE TRUSTEE SHALL NOT BE RESPONSIBLE IN ANY MANNER
WHATSOEVER FOR OR IN RESPECT OF THE VALIDITY OR SUFFICIENCY OF THIS
SUPPLEMENTAL INDENTURE OR FOR OR IN RESPECT OF THE RECITALS CONTAINED
HEREIN, ALL OF WHICH RECITALS ARE MADE SOLELY BY THE GUARANTEEING
SUBSIDIARY AND THE COMPANY.
F-5
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS SUPPLEMENTAL
INDENTURE TO BE DULY EXECUTED AND ATTESTED, ALL AS OF THE DATE FIRST ABOVE
WRITTEN.
DATED: _______________, ____
[GUARANTEEING SUBSIDIARY]
BY:
--------------------
NAME:
TITLE:
X.X. XXXXXX AUTOMOTIVE
CASTINGS, INC.
BY:
--------------------
NAME:
TITLE:
FRENCH HOLDINGS, INC.
BY:
---------------------
NAME:
TITLE:
ALLOTECH INTERNATIONAL,
INC.
BY:
---------------------
NAME:
TITLE:
X.X. XXXXXX CORPORATION
BY:
---------------------
NAME:
TITLE:
U.S. BANK TRUST NATIONAL
ASSOCIATION, AS TRUSTEE
BY:
---------------------
AUTHORIZED SIGNATORY
F-6
SCHEDULE I
SCHEDULE OF SUBSIDIARY GUARANTORS
THE FOLLOWING SCHEDULE LISTS EACH SUBSIDIARY GUARANTOR UNDER THE
INDENTURE AS OF THE ISSUE DATE:
FRENCH HOLDINGS, INC.
ALLOTECH INTERNATIONAL, INC.
X.X. XXXXXX CORPORATION
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