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XXXXX XXXXX HOLDING CORP.
and
THE CONNECTICUT NATIONAL BANK, Trustee
------------------------
INDENTURE
Dated as of September 15, 1992
------------------------
$123,380,000
15% Senior Subordinated Zero Coupon Notes
due September 15, 2004, Series A
and
15% Senior Subordinated Zero Coupon Notes
due September 15, 2004, Series B
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CROSS-REFERENCE TABLE TIA
TIA Indenture
Section Section
------- ---------
310(a)(1)....................................... 7.10
(a)(2)....................................... 7.10
(a)(3)....................................... N.A.
(a)(4)....................................... N.A.
(a)(5)....................................... 7.08; 7.10
(b).......................................... 7.08; 7.10
(c).......................................... N.A.
311(a).......................................... 7.11
(b).......................................... 7.11
(c).......................................... N.A.
312(a).......................................... 2.05
(b).......................................... 12.03
(c).......................................... 12.03
313(a).......................................... 7.06
(b)(1)....................................... N.A.
(b)(2)....................................... 7.06
(c).......................................... 7.06; 12.02
(d).......................................... 7.06
314(a).......................................... 4.07; 4.09;
12.02
(b).......................................... N.A.
(c)(1)....................................... 12.04
(c)(2)....................................... 12.04
(c)(3)....................................... N.A.
(d).......................................... N.A.
(e).......................................... 12.05
(f).......................................... N.A
315(a).......................................... 7.01(b)
(b).......................................... 7.05; 12.02
(c).......................................... 7.01(a)
(d).......................................... 7.01(c)
(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
317(a)(1)....................................... 6.08
(a)(2)....................................... 6.09
(b).......................................... 2.04
318(a).......................................... 12.01
(c).......................................... 12.01
----------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Page
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1
Section 1.01 Definitions................................... 23
Section 1.02 IncorporatiOn by Reference of TIA.............
Section 1.03 Rules of Construction......................... 24
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating............................... 24
Section 2.02 Execution and Authentication.................. 25
Section 2.03 Registrar and Paying Agent.................... 26
Section 2.04 Paying Agent to Hold Assets in
Trust....................................... 27
Section 2.05 Securityholder Lists.......................... 28
Section 2.06 Transfer and Exchange......................... 28
Section 2.07 Replacement Securities........................ 30
Section 2.08 Outstanding Securities........................ 31
Section 2.09 Treasury Securities........................... 31
Section 2.10 Temporary Securities.......................... 32
Section 2.11 Cancellation.................................. 32
Section 2.12 Defaulted Interest............................ 32
Section 2.13 Home Office Payment Agreements................ 33
Section 2.14 CUSIP Number.................................. 33
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee............................ 33
Section 3.02 Selection of Securities To Be
Redeemed................................... 34
Section 3.03 Notice of Redemption.......................... 34
Section 3.04 Effect of Notice of Redemption................ 35
Section 3.05 Deposit of Redemption Price................... 35
Section 3.06 Securities Redeemed in Part................... 36
Section 3.07 Offer To Purchase by Application
of Net Cash Proceeds........................ 36
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Page
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ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities......................... 38
Section 4.02 Maintenance of Office or Agency............... 39
Section 4.03 Limitation on Dividends, Stock
Purchases and Certain Investments,
Loans and Advances.......................... 39
Section 4.04 Corporate Existence........................... 42
Section 4.05 Payment of Taxes and Other Claims............. 43
Section 4.06 Maintenance of Properties and
Insurance.................................. 43
Section 4.07 Compliance Certificate; Notice of
Default.................................... 44
Section 4.08 Compliance with Laws.......................... 45
Section 4.09 SEC Reports and Other Information............. 45
Section 4.10 Waiver of Stay, Extension or Usury
Laws....................................... 47
Section 4.11 Limitation on Transactions with
Affiliates................................. 48
Section 4.12 Limitation on Indebtedness.................... 49
Section 4.13 Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries............................... 50
Section 4.14 Limitation on Liens........................... 51
Section 4.15 Change of Control............................. 51
Section 4.16 Limitation on Asset Sales..................... 53
Section 4.17 Conduct of Business........................... 54
Section 4.18 Unrestricted Subsidiaries..................... 54
Section 4.19 Limitation on Guarantees by
Affiliates.................................. 55
Section 4.20 Restrictions on Sale of Stock of
Subsidiaries................................ 55
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, Etc................... 56
Section 5.02 Successor Corporation Substituted............. 57
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Page
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ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default............................. 58
Section 6.02 Acceleration.................................. 60
Section 6.03 Other Remedies................................ 61
Section 6.04 Waiver of Past Defaults....................... 61
Section 6.05 Control by Majority........................... 62
Section 6.06 Limitation on Suits........................... 62
Section 6.07 Rights of Holders to Receive
Payment..................................... 63
Section 6.08 Collection Suit by Trustee.................... 63
Section 6.09 Trustee May File Proofs of Claim.............. 63
Section 6.10 Priorities.................................... 64
Section 6.11 Undertaking for Costs......................... 64
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee............................. 65
Section 7.02 Rights of Trustee............................. 66
Section 7.03 Individual Rights of Trustee.................. 67
Section 7.04 Trustee's Disclaimer.......................... 67
Section 7.05 Notice of Default............................. 68
Section 7.06 Reports by Trustee to Holders................. 68
Section 7.07 CompensatiOn and Indemnity.................... 68
Section 7.08 Replacement of Trustee........................ 69
Section 7.09 Successor Trustee by Merger, Etc.............. 71
Section 7.10 E1igibility Disqualification................. 71
Section 7.11 Preferential Collection of Claims
Against Company.............................. 71
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Satisfaction, Discharge of the
Indenture and Defeasance of the
Securities.................................. 72
Section 8.02 Termination of Obligations upon
Cancellation of the Securities.............. 74
Section 8.03 Survival of Certain Obligations............... 74
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Page
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Section 8.04 Acknowledgment of Discharge by
Trustee..................................... 74
Section 8.05 Application of Trust Assets................... 75
Section 8.06 Repayment to the Company...................... 75
Section 8.07 Reinstatement................................. 75
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders.................... 76
Section 9.02 With Consent of Holders....................... 77
Section 9.03 Compliance with TIA........................... 78
Section 9.04 Revocation and Effect of Consents............. 78
Section 9.05 Notation on or Exchange of
Securities.................................. 79
Section 9.06 Trustee To Sign Amendments, Etc............... 79
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
Section 10.01 Purposes for Which Meetings May Be
Called..................................... 80
Section 10.02 Manner of Calling Meetings.................... 80
Section 10.03 Call of Meetings by Company or
Holders.................................... 81
Sect ion 10.04 Who May Attend and Vote at
Meetings................................... 81
Section 10.05 Regulations May Be Made by Trustee;
Conduct of the Meeting;
Voting Rights; Adjournment................. 82
Section 10.06 Voting at the Meeting and Record
To Be Kept................................. 83
Section 10.07 Exercise of Rights of Trustee or
Securityholders May Not Be Hindered
or Delayed by Call of
Meeting.................................... 83
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Page
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ARTICLE ELEVEN
SUBORDINATION
Section 11.01 Securities Subordinated to Senior
Indebtedness............................... 84
Section 11.02 No Payment on Securities in Certain
Circumstances.............................. 84
Section 11.03 Securities Subordinated to Prior Payment
of All Senior Indebtedness on
Dissolution, Liquidation or
Reorganization of the Company.............. 86
Section 11.04 Securityholders To Be Subrogated to
Rights of Holders of Senior
Indebtedness............................... 87
Section 11.05 Obligations of the Company
Unconditional.............................. 87
Section 11.06 Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice........ 88
Section 11.07 Application by Trustee of Assets
Deposited with It.......................... 88
Section 11.08 Subordination Rights Not Impaired by
Acts or Omissions of Company or
Holders of Senior Indebtedness............. 89
Section 11.09 Securityholders Authorize Trustee To
Effectuate Subordination of
Securities................................. 89
Section 11.10 Right of Trustee to Hold Senior
Indebtedness............................... 90
Section 11.11 Article Eleven Not To Prevent Events
of Default................................. 90
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01 TIA Controls.................................. 90
Section 12.02 Notices....................................... 90
Section 12.03 Communications by Holders with Other
Holders.................................... 92
Section 12.04 Certificate and Opinion as to Conditions
Precedent.................................. 92
Section 12.05 Statements Required in Certificate or
Opinion.................................... 92
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Page
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Section 12.06 Rules by Trustee, Paying Agent,
Registrar.................................. 93
Section 12.07 Legal Holidays................................ 93
Section 12.08 Governing Law................................. 93
Section 12.09 No Adverse Interpretation of Other
Agreements................................. 93
Section 12.10 No Recourse Against Others.................... 94
Section 12.11 Holding Company Indebtedness.................. 94
Section 12.12 Successors.................................... 94
Section 12.13 Duplicate Originals........................... 94
Section 12.14 Severability.................................. 94
Signatures...................................................... 95
Exhibit A - Form of Series A Note............................. A-1
Exhibit B - Form of Series B Note............................. B-1
Exhibit C - Form of Legend for Book-Entry Securities.......... C-1
Exhibit D - Form of Transferee Certificate.................... D-l
Exhibit E - Accreted Value Per $1,000 Face Amount............. E-1
Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
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INDENTURE, dated as of September 15, 1992, between Xxxxx Xxxxx
Holding Corp., a Delaware corporation (the "Company"), and The Connecticut
National Bank, as Trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 15%
Senior Subordinated Zero Coupon Notes due September 15, 2004, Series A, and 15%
Senior Subordinated Zero Coupon Notes due September 15, 2004, Series B:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accreted Value" means, at any date, with respect to the Securities,
the sum of (i) the Payment Amount of such Securities and (ii) that portion of
the original issue discount (the excess of the face amount over the Payment
Amount) which has been amortized at such time on the effective interest method
of accounting, using semi-annual compounding of interest on March 15 and
September 15 of each year, from the Issue Date of such Securities through the
date as of which the Accreted Value is being determined. That portion of the
original issue discount amortized during any period or portion thereof, other
than a semi-annual period ending on March 15 or September 15, shall be
determined in proportion to the number of days elapsed in such period or portion
thereof, based upon a semi-annual period of six 30-day months.
"Acquired Indebtedness" means Indebtedness of a person or any of its
Subsidiaries existing at the time such person becomes a Subsidiary of the
Company or assumed in connection with the acquisition of assets from such person
and not incurred by such person in connection with, or in anticipation or
contemplation of, such person becoming a Subsidiary of the Company or such
acquisition.
"Acquisition" means the Company's acquisition of Xxxxx Xxxxx through
(i) the acquisition of 100% of the outstanding capital stock of Daboco, one of
the partners of Xxxxx Xxxxx, and (ii) the redemption of the partnership
interests in Xxxxx Xxxxx owned by Dajaco Inc. and DLR Inc.
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"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 the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Section 4.11, the term "Affiliate" shall include any
person who, as a result of any transaction described in Section 4.11, would
become an Affiliate. Notwithstanding the foregoing, the term "Affiliate," with
respect to the Company and its Affiliates, shall not include BT Securities
Corporation or any of its Affiliates.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Applicable Premium" means, with respect to a Security, the greater
of (i) 7.5% of the then outstanding Accreted Value or principal amount, as the
case may be, of a Security and (ii) the excess of (A) the present value of the
amount due on such Security as if such Security was redeemed on September 15,
1997, discounted back from September 15, 1997 to the Redemption Date computed
using a discount rate equal to the Treasury Rate plus the Applicable Spread,
over (B) the then outstanding Accreted Value of such Security.
"Applicable Spread" means 100 basis points.
"Asset Acquisition" means (i) an Investment by the Company or any
Subsidiary of the Company in any other person pursuant to which such person
shall become a Subsidiary of the Company or any Subsidiary of the Company or
shall be merged with the Company or any Subsidiary of the Company or (ii) the
acquisition by the Company or any Subsidiary of the Company of the assets of any
person which constitute all or substantially all of the assets of such person or
any division or line of business of such person.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease, assignment or other transfer for value by the
Company or any of its Subsidiaries (including
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any Sale/leaseback) to any person other than the Company or a wholly-owned
Subsidiary of the Company, in one transaction or a series of related
transactions, of (i) any Capital Stock of any Subsidiary of the Company; (ii)
all or substantially all of the properties and assets of any division or line of
business of the Company or any Subsidiary of the Company; or (iii) any other
properties or assets of the Company or any Subsidiary of the Company other than
in the ordinary course of business; provided that clause (iii) shall not apply
to an Asset Sale as such term is used in the definition of "Consolidated Fixed
Charge Coverage Ratio." For the purposes of this definition, the term "Asset
Sale" shall not include any Capital Stock of the Company or sale, issuance,
conveyance, transfer, lease or other disposition of properties or assets that is
governed by the provisions of Article Five.
"Asset Swap" shall mean any transaction, or series of related
transactions (whether by purchase or sale of assets or securities), whereby
assets of the Company or any of its Subsidiaries are exchanged by the Company or
any of such Subsidiaries for Productive Assets owned by a person other than the
Company or any of its Subsidiaries or any Affiliates thereof. If a transaction
otherwise constitutes an Asset Swap but also includes the receipt of Net Cash
Proceeds, such transaction shall be treated as a disposition of assets to the
extent of such Net Cash Proceeds for purposes of Section 4.16.
"Xxxx Capital" means, collectively, Xxxx Venture Capital, a
California limited partnership, BCIP Associates, BCIP Trust Associates, L.P.,
Tyler Capital Fund, L.P., Tyler Massachusetts, L.P., and Tyler International,
L.P.-II, and the partners (as of the date of determination) of each of the
foregoing.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any person, the Board of
Directors of such person or any committee of the Board of Directors of such
person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such person.
"Board Resolution" means, with respect to any person, a duly adopted
resolution of the Board of Directors or other equivalent governing body of such
person.
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"Book-Entry Security" means a Security represented by a Global
Security and registered in the name of the nominee of the Depository.
"Business Day" means a day that is not a Legal Holiday.
"Capital Lease," as applied to any person, means any lease of any
property (whether real, personal or mixed) by that person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that person.
"Capital Stock" means (i) with respect to any person, any and all
shares, interests, participations or other equivalents (however designated) of
corporate stock, including each class of common stock and preferred stock of
such person and (ii) with respect to Xxxxx Xxxxx or any other person formed
other than as a corporation, any and all partnership or other equity interests
of Xxxxx Xxxxx or such other person.
"Capitalized Lease Obligation" means, as to any person, the
obligations of such person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
Indenture, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Corporation or at least P-1 from Xxxxx'x
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by any
commercial bank organized under the laws of the United States of America or any
state
-5-
thereof or the District of Columbia or any U.S. branch of a foreign bank having
at the date of acquisition thereof combined capital and surplus of not less than
$250,000,000; (v) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause (iv) above;
and (vi) investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company, Xxxxx Xxxxx or Daboco to any person or group of
related persons for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof (whether or not otherwise in compliance
with the provisions of the Indenture); (ii) the approval by the holders of
Capital Stock of the Company or Xxxxx Xxxxx or Daboco of any plan or proposal
for the liquidation or dissolution of the Company or Xxxxx Xxxxx or Daboco
(whether or not otherwise in compliance with the provisions of the Indenture);
(iii) the acquisition in one or more transactions of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act) by any person, entity
or Group (other than Xxxx Capital), in either case, of any securities of the
Company, Xxxxx Xxxxx or Daboco such that, as a result of such acquisition, such
person, entity or Group either (A) beneficially owns (within the meaning of Rule
13d-3 under the Exchange Act), directly or indirectly, at least 30% of the
Company's, Xxxxx Xxxxx'x or Daboco's then outstanding voting securities entitled
to vote on a regular basis in an election for a majority of the Board of
Directors or other equivalent governing body thereof, unless at all times that
such person, entity, or Group so owns at least 30% of such voting securities
Xxxx Capital beneficially owns, directly or indirectly, at least 50% of the
voting securities of the entity (i.e., either the Company, Xxxxx Xxxxx or
Daboco) in which such person, entity or Group holds such 30% or more voting
interest or (B) otherwise has the ability to elect, directly or indirectly, a
majority of the members of the Company's, Xxxxx Xxxxx'x or Daboco's Board of
Directors or other equivalent governing body; (iv) Xxxx Capital sells,
transfers, or otherwise disposes of more than 50% of the economic interest in
the Company, Xxxxx Xxxxx or Daboco held by Xxxx Capital on the Issue Date;
provided that, for purposes of this clause (iv), if Bain
-6-
Capital transfers any Capital Stock of the Company, Xxxxx Xxxxx or Daboco to
management of the Company, Xxxxx Xxxxx or Daboco subsequent to the Issue Date,
then the economic interest deemed to be held by Xxxx Capital as of the Issue
Date shall be reduced by the economic interest of such Capital Stock so
transferred; or (v) the failure of Holdings to (a) own, directly or indirectly,
more than 50% of the voting securities of Xxxxx Xxxxx or (b) have the ability to
elect, directly or indirectly, a majority of the members of Xxxxx Xxxxx'x Board
of Directors or other equivalent governing body.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section
4.15.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any person, for any
period, the sum (without duplication) of (i) Consolidated Net Income, (ii) to
the extent Consolidated Net Income has been reduced thereby, all income taxes of
such person and its Subsidiaries paid or accrued in accordance with GAAP for
such period (other than income taxes attributable to extraordinary, unusual or
non-recurring gains or losses), Consolidated Interest Expense, amortization
expense and depreciation expense and (iii) other non-cash items other than
non-cash interest reducing Consolidated Net Income less other non-cash items
increasing Consolidated Net Income, all as determined on a consolidated basis
for such person and its Subsidiaries in conformity with GAAP (it being
understood that, for purposes of calculating Consolidated EBITDA notwithstanding
GAAP, rent expense shall only reduce Consolidated Net Income to the extent that
such rent is actually paid and no effect shall be given to rent deferrals or any
reversals thereof).
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any person, the ratio of Consolidated EBITDA of such person during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated
-7-
Fixed Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed
Charges of such person for the Four Quarter Period. For purposes of this
definition, prior to the date on which four full fiscal quarters have elapsed
subsequent to the Issue Date and financial statements with respect thereto are
available, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated, in the case of the Company, after giving effect to the Acquisition
on a pro forma basis as if it occurred on the first day of the Four Quarter
Period. In addition to and without limitation of the foregoing, for purposes of
this definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to (i) the incurrence or repayment of any Indebtedness of such
person or any of its Subsidiaries (and the application of the proceeds thereof)
giving rise to the need to make such calculation and any incurrence or repayment
of other Indebtedness (and the application of the proceeds thereof) at any time
subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment, as the case may be (and
the application of the proceeds thereof), occurred on the first day of the Four
Quarter Period and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such person or one of its Subsidiaries (including any
person who becomes a Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA associated with such Asset Acquisition) occurring during
the Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness or Acquired Indebtedness) occurred on the first day of the
Four Quarter Period. If such person or any of its Subsidiaries directly or
indirectly guarantees Indebtedness of a third person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
person or any Subsidiary of such person had directly incurred or otherwise
assumed such guaranteed Indebtedness. Furthermore, in calculating "Consolidated
Fixed Charges" for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1) interest on
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in
-8-
effect on the Transaction Date; (2) if interest on any Indebtedness actually
incurred on the Transaction Date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Four Quarter
Period; (3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Swap Obligations, shall be deemed to accrue at
the rate per annum resulting after giving effect to the operation of such
agreements; and (4) the permanent retirement of any Indebtedness during the Four
Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date shall be given effect as if it
occurred at the beginning of such Four Quarter Period. Furthermore, in
calculating "Consolidated Fixed Charges" for purposes of determining both the
denominator and the numerator of this "Consolidated Fixed Charge Coverage
Ratio," interest on Indebtedness determined on a fluctuating basis, to the
extent such interest is covered by Interest Rate Cap Agreements, shall be deemed
to accrue at the rate per annum resulting after giving effect to the operation
of such agreements.
"Consolidated Fixed Charges" means, with respect to any person for
any period, the sum, without duplication, of (i) Consolidated Interest Expense
(before amortization or write-off of debt issuance costs and before amortization
of any original issue discount associated with the issuance of Common Stock to
the Purchasers in connection with the initial issuance of the Series A Notes)
and (ii) the product of (x) the amount of all dividend payments on any series of
preferred stock of such person (except dividends for such period which are
accrued but unpaid) times (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
federal, state and local tax rate of such person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any person
for any period, the aggregate of all cash and non-cash interest expense (net of
interest income) with respect to all outstanding Indebtedness of such person and
its Subsidiaries, including the net costs associated with Interest Swap
Obligations, for such period determined on a consolidated basis in conformity
with GAAP.
-9-
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Subsidiaries, on a
consolidated basis for such period determined in conformity with GAAP; provided
that the net income of any person, in which such person or any Subsidiary of
such person has an ownership interest shall be included only to the extent of
the lesser of (y) such income that has actually been received by such person or
its Subsidiaries in the form of dividends or other distributions during such
period or (z) the net income of such person (which in no event shall be less
than zero); provided, further, that there shall be excluded (i) the income (or
deficit) of any person (acquired in a pooling of interests transaction) accrued
prior to the date it becomes a Subsidiary of such person or is merged into or
consolidated with such person or any Subsidiary, and (ii) any extraordinary,
unusual or nonrecurring gains or losses (and related tax effects) in accordance
with GAAP; provided, further, that notwithstanding the requirements of GAAP, in
calculating Consolidated Net Income the amortization of non-compete payments
relating to the Non-Compete Agreements shall be based upon a 25-year
amortization schedule and the amortization of debt issuance costs shall be over
the scheduled life of the debt (without regard to any early retirement) giving
rise to such debt issuance costs.
"Consolidated Net Worth" means, with respect to any person as at any
date of determination, the total of the amounts shown on the consolidated
balance sheet of such person and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP as (i) the par or stated value of all outstanding
Capital Stock of such person plus (ii) paid-in capital or capital surplus
relating to such Capital Stock plus (iii) any retained earnings or earned
surplus less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Capital Stock.
"Credit Agreement" means the Credit Agreement dated as of September
24, 1992, among Xxxxx Xxxxx, Daboco, Xxxxx Xxxxx Inc., the Lenders and Bankers
Trust Company, as Agent, or any successor agreement (whether or not Daboco and
Xxxxx Xxxxx Inc. are also parties thereto), together with the documents related
thereto, including, without limitation, any security agreements, pledge
agreements, mortgages and guaranties, in each case as such agreements may be
amended, restated, supplemented or otherwise modified from time to time and
includes any agreement renewing, extending the maturity of, refinancing
(including by way of placement or issuance of notes or
-10-
Permitted Preferred Stock) or restructuring (including the inclusion of
additional borrowers and/or the exclusion of Daboco and/or Xxxxx Xxxxx Inc. as
guarantors) all or any portion of the Indebtedness under such agreements.
"Credit Agreement Reinvestment Notice" means a notice of election to
reinvest Net Cash Proceeds of an Asset Sale given by Xxxxx Xxxxx pursuant to the
terms of the Credit Agreement; provided, however, that for purposes of this
Indenture only $500,000 of Net Cash Proceeds received in any fiscal year shall
be subject to such a notice.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Daboco" means Daboco, Inc., a New York corporation, which at the
Issue Date will be the owner of a 99% partnership interest in Xxxxx Xxxxx and
which is a wholly-owned Subsidiary of the Company.
"Default" means any event or condition the occurrence of which
would, with the passage of time or the giving of notice or both, become an Event
of Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Book-Entry Securities, The Depository Trust Company or
another person designated as Depository by the Company, which must be a clearing
agency registered under the Exchange Act.
"Disqualified Capital Stock" means any class of Capital Stock which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Maturity Date.
"Xxxxx Xxxxx" means Xxxxx Xxxxx, a New York general partnership,
which at the Issue Date will be 99% owned by Daboco and 1% owned by Xxxxx Xxxxx
Inc.
"Xxxxx Xxxxx Inc." means Xxxxx Xxxxx Inc., a Delaware corporation,
which at the Issue Date will be the owner of a 1% partnership interest in Xxxxx
Xxxxx and which is a wholly-owned Subsidiary of Daboco.
-11-
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer" means the registration by the Company under the
Securities Act of all the Series B Notes pursuant to a registration statement
under which the Company offers each Holder of Series A Notes the opportunity to
exchange all Series A Notes held by such Holder for Series B Notes in an
aggregate Accreted Value or principal amount, as the case may be, equal to the
aggregate Accreted Value or principal amount, as the case may be, of Series A
Notes held by such Holder, all in accordance with the terms and conditions of
the Registration Rights Agreement.
"Final Accretion Date" means September 15, 1999.
"GAAP" means generally accepted accounting principles as in effect
in the United States of America as of the date of this Indenture. If the Company
has changed one or more of the accounting principles used in the preparation of
its financial statements, then a Default or an Event of Default relating to
financial ratios or amounts, calculated under the new accounting principles,
shall not be considered a Default or an Event of Default if the required ratio
or amount would have been complied with had the Company continued to use those
generally accepted accounting principles employed as of the date of this
Indenture.
"Global Security" means a Security evidencing all or a part of the
Securities to be issued as Book-Entry Securities, issued to the Depository in
accordance with Section 2.02 and bearing the legend prescribed in Exhibit C.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means with respect to any person, without
duplication, (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments,
-12-
(iii) all Capitalized Lease Obligations of such person, (iv) all obligations of
such person issued or assumed as the deferred purchase price of property or
services (excluding deferred rent expense), all conditional sale obligations and
all obligations under any title retention agreement (but excluding trade
accounts payable and accrued expenses arising in the ordinary course of
business), (v) all obligations of such person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction entered into in the ordinary course of business, (vi) all
obligations of any other person of the type referred to in clauses (i) through
(v) which are secured by any Lien on any property or asset of such first person
and the amount of such obligation shall be the lesser of the value of such
property or asset or the amount of the obligation so secured, (vii) all
guarantees of Indebtedness by such person, (viii) Disqualified Capital Stock
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (ix) all obligations under Interest Swap
Obligations of such person and (x) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the types referred
to in clauses (i) through (ix) above. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value to be
determined in good faith by the Board of Directors of the Company.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a nationally recognized
reputable accounting, appraisal or investment banking firm that is, in the
reasonable judgment of the Board of Directors of the Company, qualified to
perform the task for which such firm has been engaged hereunder and
disinterested and independent with respect to the Company and its Affiliates.
"Initial Public Offering" means an underwritten public offering of
common stock of the Company at a time when the Company has not previously issued
or sold any equity securities
-13-
pursuant to a registration statement filed pursuant to the Securities Act.
"Initial Public Offering Consummation Date" means the first date on
which the Company receives any proceeds from an Initial Public Offering.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Securities.
"Interest Rate Cap Agreement" means any agreement pursuant to which
any person purchases a cap on the applicable rate of interest on specified
Indebtedness.
"Interest Swap Obligations" means the obligations of any person,
pursuant to any arrangement with any other person, whereby, directly or
indirectly, such person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
person calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Investment" as applied to any person, means any direct or indirect
purchase or other acquisition by that person of, or of a beneficial interest in,
stock or other securities of any other person or any direct or indirect loan,
advance (other than advances to employees for moving and travel expenses, loans
to management for purchases of common equity of the Company, drawing accounts
and deposits in connection with rental property and similar expenditures made
and credit extended in the ordinary course of business) or capital contribution
by that person to any other person (other than the Company), including all
indebtedness and accounts receivable from that other person that are not current
assets or did not arise in the ordinary course of business. The amount of any
Investment shall be the fair market value of such Investment, as determined in
good faith by the Board of Directors of the Company at the time such Investment
is made.
"Issue Date" means the date of first issuance of the Securities
under this Indenture.
-14-
"Legal Holiday" has the meaning provided in Section 12.07.
"Lenders" means the lending institutions listed on the signature
pages of the Credit Agreement, together with any lending institutions that may
become a party to the Credit Agreement as therein provided.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Maturity Date" means September 15, 2004.
"Net Cash Proceeds" means, (i) with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Subsidiaries from such Asset
Sale net of (a) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions), (b) taxes paid or payable ((1) including,
without limitation, income taxes reasonably estimated to be actually payable as
a result of any disposition of property within two years of the date of
disposition and (2) after taking into account any reduction in tax liability due
to available tax credits or deductions and any tax sharing arrangements), and
(c) repayment of Indebtedness (other than the Securities or any Indebtedness
that is expressly subordinate in right of payment to the Securities) that is
required to be repaid in connection with such Asset Sale or (ii) with respect to
the sale of Capital Stock by any person, the aggregate net proceeds received by
such person after payment of expenses, commissions and other similar charges
incurred in connection therewith, whether such proceeds are in cash or in
property (valued at the fair market value thereof, as determined in good faith
by the Board of Directors or other equivalent governing body of such person, at
the time of receipt, whose determination shall be evidenced by a Board
Resolution).
"Net Proceeds Offer" has the meaning provided in Section 3.07.
-15-
"Net Proceeds Offer Trigger Date" means, with respect to an Asset
Sale, (i) the date which is 180 days after the date of receipt of the Net Cash
Proceeds from the applicable Asset Sale, or (ii) in the case of an Asset Sale
for which a Credit Agreement Reinvestment Notice is given, 390 days.
Non-Compete Agreements" means the non-compete agreements with each
stockholder of Daboco, Dajaco, Inc., and DLR Inc. entered into in connection
with the Acquisition and the non-compete agreements with Xxx X. Xxxxx, Xxxx X.
Xxxxx and Xxxxxxx X. Xxxxx in those certain employment and consulting agreements
entered into in connection with the Acquisition.
"Officer" means, with respect to any person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Controller, or the Secretary of such person.
"Officers' Certificate" means, with respect to any person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such person and otherwise complying with
the requirements of Sections 12.04 and 12.05.
"Operating Lease" means, as applied to any person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that person is the lessor.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee complying with the requirements of Sections 12.04
and 12.05. Unless otherwise required by the TIA, the legal counsel may be an
employee of or counsel to the Company or the Trustee.
"Paying Agent" shall have the meaning provided in Section 2.03,
except that, for the purposes of Articles Three and Eight and Sections 4.15 and
4.16, the Paying Agent shall not be the Company or a Subsidiary of the Company.
"Payment Amount" means, with respect to any Security, $364.73 per
$1,000 face amount of such Security.
"Permitted Accreted Amount" means, at any date, with respect to any
Indebtedness, the proceeds of which are used to refinance Indebtedness
outstanding under the Credit Agreement,
-16-
that portion of the original issue discount (i.e., the excess of the face amount
over the price paid therefor) which has been amortized at such time on the
effective interest method of accounting, using semi-annual compounding of
interest from the date of issuance of the relevant indebtedness through the date
as of which the Permitted Accreted Amount is being determined.
"Permitted Indebtedness" means (i) any Indebtedness under the Term
Loan Facility and all guarantees thereof in an aggregate amount not to exceed
$90 million less any permanent reductions thereof, (ii) any Indebtedness in
respect of the Working Capital Facility and all guarantees thereof in an
aggregate amount not to exceed $10 million less any permanent reductions in
availability thereunder, (iii) the Senior Notes and all guarantees thereof, (iv)
the Securities, (v) purchase money Indebtedness and any Indebtedness incurred
for Capitalized Lease Obligations not to exceed $10 million in the aggregate,
(vi) Interest Swap Obligations designed to protect Xxxxx Xxxxx against
fluctuations in interest rates on borrowings under the Credit Agreement and
other Interest Swap Obligations covering other Indebtedness of the Company or
any Subsidiary of the Company which bears interest at fluctuating interest rates
to the extent the notional principal amount of such Interest Swap Obligation
does not exceed the principal amount of the Indebtedness to which such Interest
Swap Obligation relates, (vii) additional Indebtedness not to exceed $25
million, (viii) Indebtedness owed by the Company or any of its wholly owned
Subsidiaries to any of the Company's wholly owned Subsidiaries, (ix) any
renewals, extensions, substitutions, refundings, refinancings or replacements of
any Indebtedness described in the preceding clauses (i), (ii), (iii) and (iv)
above, so long as such renewal, extension, substitution, refunding, refinancing
or replacement does not result in an increase in the aggregate principal amount
of the outstanding Indebtedness represented thereby, (x) any guarantees of the
foregoing, (xi) any notes issued by the Company to management of the Company and
its Subsidiaries in connection with the repurchase of Capital Stock of the
Company so long as such notes are subordinated in right of payment to the
Securities, (xii) trade accounts payable to the extent they constitute
Indebtedness, and (xiii) additional Indebtedness in the form of Permitted
Accreted Amount and/or Permitted PIK Interest in an aggregate amount not to
exceed $9,000,000 less the aggregate liquidation preference of any Permitted PIK
Preferred Stock at any time outstanding.
-17-
"Permitted Investment" means (i) cash and Cash Equivalents, (ii) any
Investment by the Company or any of its Subsidiaries in the Company or any
wholly owned Subsidiary of the Company, (iii) the incurrence of Permitted
Indebtedness and (iv) any Investment made by Xxxxx Xxxxx or Daboco or any wholly
owned Subsidiary of Xxxxx Xxxxx or Daboco (other than in an Unrestricted
Subsidiary) not to exceed $1,000,000 in the aggregate at any one time
outstanding.
"Permitted Liens" means (i) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens or bankers' Liens incurred in the ordinary
course of business for sums which are not yet due or are being contested in good
faith and for which adequate provision has been made, (ii) Liens for taxes not
yet subject to penalties for non-payment or which are being contested in good
faith and by appropriate proceedings, if adequate reserve, as may be required by
generally accepted accounting principles then in effect, shall have been made
therefor, (iii) any interest or title of a lessor under any lease of a
Subsidiary of the Company, including Liens arising from UCC financing statements
regarding leases, (iv) Liens securing Indebtedness of the Company permitted
pursuant to Section 4.12 to the extent the Securities are secured by such Lien
(the relative priorities of such Liens to correspond to the relative rankings of
such Indebtedness as compared to the Securities), (v) Liens on assets of
Subsidiaries of the Company permitted pursuant to the Credit Agreement and (vi)
Liens permitted pursuant to the indenture governing the Senior Notes as in
effect on the Issue Date.
"Permitted PIK Interest" means the aggregate principal amount of all
debt securities issued as interest (whether in lieu of cash or otherwise) on
Indebtedness, all of the proceeds of which are used to repay permanently
Indebtedness outstanding under the Credit Agreement.
"Permitted PIK Preferred Stock" means Preferred Stock issued as
dividends (whether in lieu of cash dividends or otherwise) on Permitted
Preferred Stock. For purposes of Section 4.20(a), dividends that accrue on
Permitted Preferred Stock but remain unpaid on and after the date such dividends
are otherwise payable shall be deemed to have been paid through the issuance of
Preferred Stock.
"Permitted Preferred Stock" means Preferred Stock issued by any
Subsidiary of the Company to any non-affiliate of either Xxxxx Xxxxx or the
Company (i) all of the proceeds of
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which are used td repay permanently Indebtedness outstanding under the Credit
Agreement, (ii) having a liquidation preference not in excess of the cash
proceeds received in exchange therefor plus accrued but unpaid dividends, (iii)
which pays a fixed or floating dividend and (iv) which may be entitled to pay
contingent dividends based upon the Company's future performance such that,
after giving effect to the payment of any such contingent dividends through the
inclusion of such dividends in the computation of Consolidated Fixed Charges,
the Company shall be in compliance with Section 4.12(b).
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Plan of Liquidation" means, with respect to any person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such person to holders of
Capital Stock of such person.
"Preferred Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated) of
such person's preferred or preference stock or partnership interests, whether
outstanding on the date hereof or issued after the date of this Indenture, and
including, without limitation, all classes and series of preferred or preference
stock or partnership interests of such person.
"principal" of any Indebtedness (including the Securities) means the
principal of such Indebtedness plus the premium, if any, on such Indebtedness.
"Proceeds Purchase Date" shall have the meaning provided in Section
3.07.
"Productive Assets" means assets (including Capital Stock) of a kind
used or useable in the business of the Company
-19-
and its Subsidiaries as it is conducted in accordance with Section 4.17.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act as interpreted by the
Company's Board of Directors in consultation with its independent certified
public accountants.
"Purchase Agreement" means the Purchase Agreement between the
Company and the Purchasers, dated as of September 25, 1992, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, providing for the purchase of the Securities.
"Purchasers" means the Purchasers named on the execution pages
attached to the Purchase Agreement.
"Qualified Capital Stock" means, with respect to any person, any
Capital Stock of such person that is not Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Securities;
provided that if any such date is a Legal Holiday, the Record Date shall be the
first day immediately preceding such specified day that is not a Legal Holiday.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Securities.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company and the Purchasers, dated as of September 25,
1992, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
-20-
"Representative" means the indenture trustee or other trustee, agent
or representative of any Senior Indebtedness.
"Restricted Payment" has the meaning provided in Section 4.03.
"Restricted Security" has the meaning provided in the Purchase
Agreement.
"Sale/leaseback" means any lease, whether an Operating Lease or a
Capital Lease, whereby the Company or any of its Subsidiaries, directly or
indirectly, becomes or remains liable as lessee or as guarantor or other surety,
of any property (whether real or personal or mixed) whether now owned or
hereafter acquired, (i) that the Company or any of its Subsidiaries, as the case
may be, has sold or transferred or is to sell or transfer to any other person
(other than the Company), or (ii) that the Company or any of its Subsidiaries,
as the case may be, intends to use for substantially the same purpose as any
other property that has been or is to be sold or transferred by the Company or
any such Subsidiary to any person (other than the Company) in connection with
such lease.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Notes and the Series B Notes.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Senior Indebtedness" means any guarantee by the Company of the
principal of and interest on (i) any Indebtedness of any Subsidiary of the
Company under the Credit Agreement, (ii) the Senior Notes or any refinancing,
refunding, replacement or extension thereof, and (iii) any Indebtedness
described under clause (vii) of the definition of the term "Permitted
Indebtedness" hereunder, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular guarantee,
the instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such guarantee shall not be senior in right
of payment to the Securities. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include that portion of any Indebtedness which at the
time of issuance is issued in violation of the Indenture.
-21-
"Senior Notes" means the $90,000,000 aggregate principal amount of
Xxxxx Xxxxx'x 12% Senior Notes due September 15, 2002, Series A or Series B, as
the case may be, issued pursuant to an Indenture dated as of September 15, 1992
among Xxxxx Xxxxx and Daboco and Xxxxx Xxxxx Inc., as Guarantors, and The
Connecticut National Bank, as Trustee, which Senior Notes are guaranteed by
Daboco and Xxxxx Xxxxx Inc., as amended or supplemented from time to time in
accordance with the terms thereof.
"Series A Notes" means the Company's 15% Senior Subordinated Zero
Coupon Notes due September 15, 2004, Series A, as amended or supplemented from
time to time in accordance with the terms hereof, that are issued pursuant to
this Indenture.
"Series B Notes" means the Company's 15% Senior Subordinated Zero
Coupon Notes due September 15, 2004, Series B, as amended or supplemented from
time to time in accordance with the terms hereof, that are issued pursuant to
this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company that
satisfies the criteria for a "significant subsidiary" set forth in Rule 1.02(v)
of Regulation S-X under the Securities Act, but shall not include any
Unrestricted Subsidiary.
"Subsidiary" of any person means (i) any corporation of which the
outstanding capital stock having at least a majority of the votes entitled to be
cast in the election of directors under ordinary circumstances shall at the time
be owned, directly or indirectly, by such person or (ii) any other person of
which at least a majority of the voting interest under ordinary circumstances is
at the time owned, directly or indirectly, by such person. Unrestricted
Subsidiaries shall not be included in the definition of Subsidiaries for any
purpose of the Indenture.
"Term Loan Facility" means the term loan facilities (or any similar
facilities) under the Credit Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. SS
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified under
the TIA, except as otherwise provided in Section 9.03.
-22-
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities maturing closest to September
15, 1997 (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) which has become publicly available at least two
Business Days prior to the date fixed for prepayment or redemption (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)).
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Unrestricted Subsidiary" means a newly-formed or newly-acquired
entity that would, but for the last sentence of the definition of the term
"Subsidiary" herein, be a Subsidiary of the Company (a) no portion of the
Indebtedness or any other obligation (contingent or otherwise) of which (i) is
guaranteed by the Company or any Subsidiary of the Company, (ii) is recourse to
or obligates the Company or any Subsidiary of the Company in any way or (iii)
subjects any property or asset of the Company or any Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to satisfaction thereof, (b)
with which the Company or any Subsidiary of the Company has no contract,
agreement, arrangement, understanding or is subject to an obligation of any
kind, whether written or oral, other than a transaction on terms no less
favorable to the Company or any Subsidiary of the Company than those which might
be obtained at the time from persons who are not Affiliates of the Company, (c)
with which neither the Company nor any Subsidiary of the Company has any
obligation (other than as required by the terms of this Indenture) (i) to
subscribe for additional shares of Capital Stock, or other equity interest
therein, or (ii) to maintain or preserve such Subsidiary's financial condition
or to cause such Subsidiary to achieve certain levels of operating results, (d)
which has been designated at the time of its formation or acquisition in a Board
Resolution of the Company as an Unrestricted Subsidiary, (e) having no
Indebtedness outstanding at any time, the breach or violation of the terms of
which causes or would cause a default under, or gives or would give the holders
of any Indebtedness of the Company or any Subsidiary of the Company the right to
accelerate, any
-23-
Indebtedness of the Company or any Subsidiary of the Company, and (f) any
Subsidiary of an entity that satisfies the criteria described in the foregoing
clauses (a) through (e).
"U.S. Government Obligations" has the meaning provided in Section
8.01.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"wholly owned Subsidiary" means any Subsidiary all of the shares of
Capital Stock of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Company.
"Working Capital Facility" means (i) the revolving credit facility
(or any similar facility) available under the Credit Agreement including any
related letters of credit or (ii) any other credit facility secured by accounts
receivable and/or inventory and proceeds thereof.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute
-24-
or defined by SEC rule and not otherwise defined herein have the meanings
assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
All references herein to "Accreted Value or principal amount, as the
case may be," shall mean Accreted Value prior to the Final Accretion Date and
principal amount thereafter.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A or Exhibit B hereto, as the case may
be. The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. The Company and the Trustee shall approve the form
of the Securities and any notation, legend or endorsement on them. Each Security
shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this
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Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall nevertheless be valid.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $123,380,000 upon receipt of a written order
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Securities to be authenticated and the
date on which the Securities are to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $123,380,000, except
as provided in Section 2.07 and except as provided in the last sentence of this
paragraph. Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution of
Securities originally issued to reflect any name change of the Company. Upon the
written order of the Company in the form of an Officers' Certificate, the
Trustee shall authenticate Securities in the aggregate principal amount
necessary to pay additional interest pursuant to the Registration Rights
Agreement on each date on which it is necessary to pay such additional interest.
Series B Notes may be issued only in exchange for a like principal
amount of Series A Notes pursuant to an Exchange Offer.
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Subject to Section 2.13, the principal and interest on Book-Entry
Securities shall be payable to the Depository or its nominee, as the case may
be, as the sole registered owner and the sole holder of the Book-Entry
Securities represented thereby. Except as otherwise provided in Section 4.3 of
the Purchase Agreement and Section 2.13, the principal and interest on
Securities in certificate form shall be payable at the office or agency of the
Company maintained for such purpose in the Borough of Manhattan in The City of
New York, or at such other office or agency of the Company as may be maintained
for such purpose; provided, however, that at the option of the Company interest
may be paid by check mailed to the addresses of the persons entitled thereto as
such addresses shall appear with either the Registrar or Paying Agent.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise provided
in the appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
If the Securities are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that (i) shall represent and shall be
in minimum denominations of $1,000 or in the approximate equivalent amount, (ii)
shall be registered in the name of the Depository for such Global Security or
Securities or the nominee of such Depository, (iii) shall be delivered by the
Trustee to such Depository or pursuant to such Depository's instructions and
(iv) shall bear the legend set forth in Exhibit C.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of
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the Securities and this Indenture may be served. The Company may also from time
to time designate one or more other offices or agencies where the Securities 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 may act as its own Registrar or Paying Agent except that
for the purposes of Articles Three and Eight and Sections 4.15 and 4.16 neither
the Company nor any Subsidiary of the Company nor any of their Affiliates shall
act as Paying Agent. The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company, upon notice to the Trustee, may
have one or more co-Registrars and one or more additional paying agents
reasonably acceptable to the Trustee. The term "Paying Agent" includes any
additional paying agent. The Company initially appoints the Trustee as Registrar
and Paying Agent until such time as the Trustee has resigned or a successor has
been appointed.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, or interest on, the Securities (whether such assets
have been distributed to it by the Company or any other obligor on the
Securities), and shall notify the Trustee of any Default by the Company (or any
other obligor on the Securities) in making any such payment. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate such assets
and hold them as a separate trust fund. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it
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to the Trustee and to account for any assets distributed. Upon distribution to
the Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee on each March 15 and September 15 and at such other times as the
Trustee may request in writing a list as of such date and in such form as the
Trustee may reasonably require of the names and addresses of the Holders, which
list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
When Securities in certificated form are presented to the Registrar
or a co-Registrar with a request to register the transfer of such Securities or
to exchange such Securities for an equal principal amount of Securities of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Section
2.02, 2.10, 3.06, 4.15, 4.16 or 9.05). The Registrar or co-Registrar shall not
be required to register the transfer of or exchange of any Security (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing and (ii) selected for redemption in whole or in part
pursuant to Article Three, except the unredeemed portion of any Security being
redeemed in part.
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If a Series A Note is a Restricted Security in certificated form,
then as provided in this Indenture and subject to the limitations herein set
forth, the Holder, provided it is a Qualified Institutional Buyer, may exchange
such Security for a Book-Entry Security by instructing the Trustee (by
completing the Transferee Certificate attached to the Security) to arrange for
such Series A Note to be represented by a beneficial interest in a Global
Security in accordance with the customary procedures of the Depository.
The Company may at any time determine not to have Securities (other
than Restricted Securities) represented in certificated form, in which event the
Holder of a Security (other than Restricted Securities) in certificated form may
be required to exchange such Security for a Book-Entry Security.
A Global Security is exchangeable for Securities in certificated
form only if (x) the Depository is at any time unwilling or unable to continue
as depository and a successor depository is not appointed by the Company within
30 days or (y) there shall have occurred and be continuing an Event of Default
or (z) the Company may at any time determine not to have Securities represented
by a Global Security. In addition, in accordance with the provisions of this
Indenture and subject to certain limitations herein set forth including the
preceding sentence and the delivery of a certificate in the form of Exhibit D
hereto, an owner of a beneficial interest in a Global Security which is a Series
A Note may request a Security in certificated form, in exchange in whole or in
part, as the case may be, for such beneficial owner's interest in the Global
Security.
Upon any exchange provided for in the preceding paragraph, the
Company shall execute and the Trustee shall authenticate and deliver to the
person specified by the Depository a new Security or Securities registered in
such names and in such authorized denominations as the Depository, pursuant to
the instructions of the beneficial owner of the Securities requesting the
exchange, shall instruct the Trustee. Thereupon, the beneficial ownership of
such Global Security shown on the records maintained by the Depository or its
nominee shall be reduced by the amounts so exchanged and an appropriate
endorsement shall be made by or on behalf of the Trustee on the Global Security.
Notwithstanding any other provision of this Section 2.06, unless and
until it is exchanged in whole or in
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part for Series A Notes in certificated registered form, a Global Security
representing Book-Entry Securities may not be transferred, except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor depository or a nominee of such successor
depository.
Notwithstanding the foregoing, no Global Security shall be
registered for transfer or exchange, or authenticated and delivered, whether
pursuant to this Section, Section 2.07, 2.10 or 3.06 or otherwise, in the name
of a person other than the Depository for such Global Security or its nominee
until (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time the Depository
ceases to be a clearing agency registered under the Exchange Act, and a
successor depository is not appointed by the Company within 30 days, (ii) the
Company executes and delivers to the Trustee a Company order that all such
Global Securities shall be exchangeable or (iii) there shall have occurred and
be continuing an Event of Default. Upon the occurrence in respect of any Global
Security representing the Securities of any one or more of the conditions
specified in clause (i), (ii) or (iii) of the preceding sentence, such Global
Security may be registered for transfer or exchange for Series A Notes
registered in the names of, authenticated and delivered to, such persons as the
Trustee or the Depository, as the case may be, shall direct.
Except as provided above, any Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any Global
Security, whether pursuant to this Section, Section 2.07, 2.10 or 3.06 or
otherwise, shall also be a Global Security and bear the legend specified in
Exhibit C.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a
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Security is replaced. The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel. Every replacement Security shall constitute an additional
obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those canceled by it, those delivered
to it for cancellation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or any of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or a Subsidiary of the Company) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest due
on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue;
provided, however that to the extent the Trustee is enjoined from making
payments to the Holders, interest will continue to accrue until such time as the
Trustee is not so enjoined.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required Accreted Value or
principal amount, as the case may be, of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities that the Trustee knows are so
owned shall be disregarded.
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SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a written order
of the Company pursuant to Section 2.02 definitive Securities in exchange for
temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or a Subsidiary of the Company), and no one else, shall
cancel and, at the written direction of the Company, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation. Subject
to Section 2.07, the Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation. If the Company
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities,
it shall, unless the Trustee fixes another record date pursuant to Section 6.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest to the persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding the date fixed
by the Company for the payment of defaulted interest or the next succeeding
Business Day if such date is not a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to
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each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. Home Office Payment Agreements.
Notwithstanding any provisions of the Indenture and of the
Securities to the contrary, payments of principal and interest on Restricted
Securities shall be made by the Paying Agent directly to the Holder of such
certificated Security without surrender or presentation thereof to the Paying
Agent in accordance with the provision of Section 4.3 of the Purchase Agreement.
SECTION 2.14. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number, and
if so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph 7
of the Securities, it shall notify the Trustee and the Paying Agent in writing
of the Redemption Date and the Accreted Value or principal amount, as the case
may be, of the Securities to be redeemed and whether it wants the Trustee to
give notice of redemption to the Holders (at the Company's expense) at least 30
days (unless a shorter notice shall be satisfactory to the Trustee) but not more
than 60 days before the Redemption Date. Any such notice may be canceled at any
time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
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SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
being redeemed are listed, or, if the Securities are not listed on a national
securities exchange, on a pro rata basis.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the Accreted Value or principal
amount, as the case may be, thereof to be redeemed. Securities in denominations
of $1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail to each Holder
whose Securities are to be redeemed, with a copy to the Trustee. At the
Company's request, the Trustee shall give the notice of redemption in the
Company s name and at the Company's expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
or after the Redemption
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Date, and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price upon surrender to the Paying Agent
of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
Accreted Value or principal amount, as the case may be, of such Security
to be redeemed and that, after the Redemption Date, and upon surrender of
such Security, a new Security or Securities in the aggregate Accreted
Value or principal amount, as the case may be, equal to the unredeemed
portion thereof will be issued; and
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate Accreted Value or principal amount, as
the case may be, of Securities to be redeemed and the aggregate Accreted
Value or principal amount, as the case may be, of Securities to be
outstanding after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of all
Securities to be redeemed on that date (other than Securities or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation). The Paying Agent shall promptly return
to the Company any U.S. Legal Tender so deposited which is not required for that
purpose upon the written request of the Company, except with respect to monies
owed as obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed
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will cease to accrue on and after the applicable Redemption Date, whether or
not such Securities are presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. Offer To Purchase by Application of Net Cash Proceeds.
(a) The Company shall provide the Trustee with prompt notice of the
occurrence of a Net Proceeds Offer Trigger Date; provided that the Company shall
only be required to give such notice if after such Net Proceeds Offer Trigger
Date the Company is required to make a Net Proceeds Offer. Such notice shall be
accompanied by an Officers' Certificate setting forth (a) a statement to the
effect that the Company or a Subsidiary of the Company, as the case may be, has
made an Asset Sale and (b) the aggregate principal amount of Securities offered
to be purchased and the basis of calculation in determining such aggregate
principal amount. Upon the occurrence of any Net proceeds Offer Trigger Date,
the Company shall make an offer (a "Net Proceeds Offer") to purchase, at a price
equal to 102% of the Accreted Value or principal amount, as the case may be, of
Securities to be repurchased plus accrued interest thereon to the Proceeds
Purchase Date (as defined below), such aggregate principal amount of Securities
equal to such Net Cash Proceeds, less any amounts applied in accordance with
Section 4.16(iii)(A), (B) or (C).
(b) The notice of a Net Proceeds Offer shall be sent, by first class
mail, by the Company (or caused to be mailed by the Company) with a copy to the
Trustee not more than 10 days after the Net Proceeds Offer Trigger Date to the
Holders at their last registered addresses. The Net Proceeds Offer shall remain
open from the time of mailing until three days before the Proceeds Purchase
Date. The notice to the Holders shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Net
Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to Section
3.07 and 4.16;
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(2) the purchase price (including an amount of accrued interest) and
the purchase date (which shall be no earlier than 10 days nor later than
20 days from the date notice is mailed) (the "proceeds Purchase Date");
(3) that any Security not tendered will continue to accrue interest;
(4) that unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the Net proceeds Offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to a
Net Proceeds Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the last page of the
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior to the
proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, no later than two Business Days prior to the
proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter stating fully the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that if Securities in a principal amount in excess of the
principal amount of the Securities to be acquired pursuant to the Net
Proceeds Offer are tendered and not withdrawn pursuant to the Net proceeds
Offer, the Company shall purchase Securities on a pro rata basis (with
such adjustment as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or integral multiples of $1,000
shall be so acquired); and
(8) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered.
On or before a Proceeds Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Net Proceeds
Offer (on a pro rata
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basis if required pursuant to paragraph (7) above), (ii) deposit with the Paying
Agent U.S. Legal Tender or Securities acquired in the manner described in clause
(a) of this Section 3.07 sufficient to pay the purchase price of all Securities
or portions thereof so accepted or to be credited against the Net Proceeds Offer
and (iii) deliver to the Trustee Securities so accepted together with an
Officers' Certificate identifying the Securities or portions thereof accepted
for payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders new Securities equal in principal amount to any unpurchased portion of
the Securities surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company will
publicly announce the results of the Net Proceeds Offer as promptly as
practicable following the Proceeds Purchase Date. For purposes of this Section
3.07, the Trustee shall act as the Paying Agent.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the Accreted Value or principal, as the case
may be, of and interest on the Securities on the dates and in the manner
provided in the Securities. An installment of principal of or interest on the
Securities shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or a Subsidiary of the Company) holds on
that date U.S. Legal Tender designated for and sufficient to pay the
installment.
The Company shall pay interest on overdue principal at the rate set
forth in the second paragraph of Paragraph 1 of the Securities and it shall pay
interest on overdue installments of interest at the same rate, to the extent
lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
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SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03. The Company shall
give prior notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.02.
SECTION 4.03. Limitation on Dividends, Stock Purchases and Certain
Investments, Loans and Advances.
The Company may not, directly or indirectly, (a) declare or pay any
dividend or make any distribution on its Capital Stock, or otherwise, to its
shareholders (other than dividends or distributions payable in its Qualified
Capital Stock and other than dividends on permitted preferred Stock), (b)
purchase, redeem or otherwise acquire or retire for value, or permit any
Subsidiary of the Company to purchase, redeem or otherwise acquire for value,
any Qualified Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock, (c) purchase,
redeem, prepay, decrease or otherwise acquire or retire for value, or permit any
of its Subsidiaries to, directly or indirectly, purchase, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, Disqualified
Capital Stock or Indebtedness of the Company that is expressly subordinate in
right of payment to the Securities or (d) make, or permit any of its
Subsidiaries to make, any Investment (excluding any Permitted Investment) (each
of the foregoing actions set forth in clauses (a), (b), (c) and (d) being
referred to as a "Restricted Payment"), if at the time of such Restricted
Payment or immediately after giving effect thereto, (i) a Default or an Event of
Default shall have occurred and be continuing, (ii) the Company's Consolidated
Fixed Charge Coverage Ratio for the last four completed fiscal quarters
preceding such Restricted Payment, calculated on a pro forma basis, as if such
Restricted Payment had been made at the beginning of such period, shall be less
than 1.7 to 1.0 or (iii) Restricted Payments made subsequent to the Issue Date
(the amount expended for such purposes, if other than in cash, shall be the fair
market value of such property as determined by senior management of the Company
or, if the market value of
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such property exceeds $1,000,000, by the Board of Directors of the Company in
good faith (which determination shall be evidenced by a Board Resolution)) shall
exceed the sum of:
(x) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the
Company earned subsequent to the Issue Date and prior to the date the
Restricted Payment occurs (treating such period as a single accounting
period);
(y) 100% of the aggregate net proceeds, including the fair market
value of property other than cash as determined by senior management of
the Company or, if the market value of such property exceeds $1,000,000,
by the Board of Directors of the Company in good faith (which
determination shall be evidenced by a Board Resolution), received by the
Company from any person (other than a Subsidiary of the Company) from the
issuance and sale subsequent to the Issue Date of Qualified Capital Stock
of the Company (excluding (A) Qualified Capital Stock paid as a dividend
on any Capital Stock or as interest on any Indebtedness and (B) any net
proceeds from issuances and sales financed directly or indirectly using
funds borrowed from the Company or any Subsidiary of the Company, until
and to the extent such borrowing is repaid); provided that the foregoing
shall exclude any proceeds referred to in clause (2) below that were taken
into account to permit the making of any payment by the Company in
accordance with said clause (2); provided, further that the, foregoing
shall exclude the $20,000,000 of proceeds received by the Company on or
prior to the Issue Date from the issuance of Qualified Capital Stock in
connection with the Acquisition; and
(z) 100% of the aggregate net proceeds, including the fair market
value of property other than cash as determined by senior management of
the Company or if the market value of such property exceeds $1,000,000, by
the Board of Directors of the Company in good faith (which determination
shall be evidenced by a Board Resolution), received by the Company from
any person (other than a Subsidiary of the Company) from the issue and
sale of Disqualified Capital Stock and/or Indebtedness, in each case that
has been converted into or exchanged for Qualified Capital Stock of the
Company after the Issue Date.
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Notwithstanding the foregoing, the provisions of this Section 4.03
shall not prohibit:
(1) the payment of any dividend within 60 days after the date of its
declaration if the dividend would have been permitted on the date of
declaration;
(2) the Company from redeeming or repurchasing the Company's common
equity or options in respect thereof, in connection with the repurchase
provisions under employee stock option or stock purchase agreements or
other agreements to compensate management employees; provided that such
redemptions or repurchases shall not exceed $5,000,000 in the aggregate
(the amount considered redeemed or repurchased pursuant to this clause (2)
shall be reduced (but not below $0) by any proceeds received in connection
with reissuances of securities of the same class to other management
employees following any such redemptions or repurchases, which proceeds
shall not have otherwise been taken into account under clause (y) above
with respect to the Company's ability to make any Restricted Payment under
clause (iv) above);
(3) the acquisition of Capital Stock of the Company or Indebtedness
of the Company that is expressly subordinate in right of payment to the
Securities either (i) solely in exchange for shares of Qualified Capital
Stock or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock;
(4) the acquisition of Indebtedness of the Company that is expressly
subordinate in right of payment to the Securities either (i) solely in.
exchange for Indebtedness of the Company which is expressly subordinate in
right of payment to the Securities at least to the extent that the
Indebtedness being acquired is subordinated to the Securities and has no
scheduled principal prepayment dates prior to the scheduled final maturity
date of the Indebtedness being exchanged or (ii) through the application
of net proceeds of a substantially concurrent sale for cash (other than to
a subsidiary of the Company) of Indebtedness of the Company which is
expressly subordinate in right of payment to the Securities at least to
the extent that the Indebtedness being acquired is subordinated to the
Securities and has no scheduled principal prepayment
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dates prior to the scheduled final maturity date of the Indebtedness being
refinanced; and
(5) the Investment by the Company or any of its Subsidiaries in one
or more Unrestricted Subsidiaries not to exceed $5,000,000 in the
aggregate (calculated at the time any such Investment is made);
provided that in the case of clauses (2) through (5), no Default or Event of
Default shall have occurred and be continuing at the time of such payment or as
a result thereof.
In determining the aggregate amount of Restricted Payments
permissible under clause (iii) of the first paragraph of this Section 4.03,
amounts expended, incurred or outstanding pursuant to clauses (1), (2) and (3)
of the second paragraph of this Section 4.03 shall be included as Restricted
Payments; provided that any proceeds received from the issuance of Qualified
Capital Stock pursuant to clause (3) of the second paragraph of this Section
4.03 shall be included in calculating the amount referred to in clause (y) or
clause (z), as the case may be, of the first paragraph under this Section 4.03.
Prior to any Restricted Payment under the first paragraph of this
Section 4.03, the Company shall deliver to the Trustee an Officers' Certificate
setting forth the computation by which the amount available for Restricted
Payments pursuant to such paragraph was determined. The Trustee shall have no
duty or responsibility to determine the accuracy or correctness of this
computation and shall be fully protected in relying on such Officers'
Certificate.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate or other existence of each of
its Subsidiaries in accordance with the respective organizational documents of
each such Subsidiary and the material rights (charter and statutory) and
franchises of the Company and each such Subsidiary; provided, however, that the
Company shall not be required to preserve, with respect to itself, Daboco, Xxxxx
Xxxxx Inc. and Xxxxx Xxxxx, any material right or franchise, and with respect to
any of its Subsidiaries (other than Daboco, Xxxxx Xxxxx Inc. or Xxxxx Xxxxx),
any such existence, material right or franchise, if the Board of Directors or
other
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governing body of the Company or such Subsidiary, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company or any such Subsidiary.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if either (a) the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by generally accepted accounting principles then in effect
or (b) the failure to make such payment or effect such discharge (together with
all other such failures) would not have a material adverse effect on the
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful in the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole; provided,
however, that nothing in this Section 4.06 shall prevent the Company or any
Subsidiary of the Company from discontinuing the operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is either (i) in the ordinary course of business, (ii) in the good
faith judgment of the Board of Directors or
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other equivalent governing body of the Company or the Subsidiary concerned, or
of the senior officers of the Company or such Subsidiary, as the case may be,
desirable in the conduct of the business of the Company or such Subsidiary, as
the case may be, or (iii) is otherwise permitted by this Indenture.
(b) The Company shall provide or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are adequate and appropriate for the conduct of the business of
the Company and such Subsidiaries in a prudent manner, with reputable insurers
or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the reasonable, good faith opinion of the
Company, for companies similarly situated in the industry, unless the failure to
provide such insurance (together with all other such failures) would not have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of the Company's fiscal year, an Officers' Certificate stating that a
review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, that to the best of his knowledge the
Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and at the date of such certificate there is no
Default or Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status with particularity. The
Officers' Certificate shall also include all calculations necessary to show
covenant compliance. The Officers' Certificate shall also notify the Trustee
should the Company elect to change the manner in which it fixes its fiscal year
end.
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(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the Company shall
deliver to the Trustee within 120 days after the end of each fiscal year a
written statement by the Company's independent certified public accountants
stating (A) that their audit examination has included a review of the terms of
this Indenture and the Securities as they relate to accounting matters, and (B)
whether, in connection with their audit examination, any Default has come to
their attention and if such a Default has come to their attention, specifying
the nature and period of existence thereof.
(c) (i) If any Default or Event of Default has occurred and is
continuing, (ii) if the Trustee or any Holder takes any enforcement action with
respect to a claimed default under the Indenture or the Securities or (iii) if
the trustee for or the holder of any other evidence of Indebtedness of the
Company or any Subsidiary takes any enforcement action with respect to a claimed
default (other than with respect to Indebtedness in the principal amount of less
than $12,500,000), the Company shall deliver to the Trustee by registered or
certified mail or by telegram, telex or facsimile transmission followed by hard
copy by registered or certified mail an Officers' Certificate specifying such
event, notice or other action within five Business Days of its occurrence.
SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries
and Unrestricted Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America, all states
and municipalities thereof, and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except such as are being contested in
good faith and by appropriate proceedings and except for such noncompliances as
would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.09. SEC Reports and Other Information.
(a) At all times when the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act, the Company (at its own
expense) shall file with
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the SEC and shall file with the Trustee within 5 days after it files them with
the SEC copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) to be filed pursuant to Section 13 or 15(d)
of the Exchange Act. If the Company is not subject to the requirements of such
Section 13 or 15(d) of the Exchange Act, the Company (at its own expense) shall
file with the Trustee and mail to Holders at their addresses appearing in the
register of Securities maintained by the Registrar at the time of such mailing,
so long as such Holders covenant and agree to keep such information
confidential, within 5 days after it would have been required to file such
information with the SEC, all information and financial statements, including
any notes thereto and with respect to annual reports, an auditors' report by an
accounting firm of established national reputation, and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
comparable to the disclosure that the Company would have been required to
include in annual and quarterly reports, information, documents or other
reports, including, without limitation, reports on Forms 10-K, l0-Q and 8-K, if
the Company was subject to the requirements of such Section 13 or 15(d) of the
Exchange Act. To the extent permitted by law, the Company shall also provide the
foregoing information to prospective purchasers of Securities (it being
understood that the Company will be furnishing any such information to any such
prospective purchasers on the premise that such information shall be used by
such prospective purchasers solely in connection with deciding whether or not to
purchase the Securities). Upon qualification of this Indenture under the TIA,
the Company shall also comply with the provisions of TIA ss. 314(a).
(b) At any time after a registered public offering under the
Securities Act of the common stock of the Company, at the Company's expense, the
Company shall cause an annual report if furnished by it to stockholders
generally and each quarterly or other financial report if furnished by it to
stockholders generally to be filed with the Trustee and mailed to the Holders at
their addresses appearing in the register of Securities maintained by the
Registrar at the time of such mailing or furnishing to stockholders. If the
Company is not required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act, the Company shall cause its financial
statements, including any notes thereto and with respect to annual reports, an
auditors' report by an accounting firm of established national reputation, and a
"Management's Discussion
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and Analysis of Financial Condition and Results of Operations," to be so mailed
to the Holders at their addresses appearing in the register of Securities
maintained by the Registrar at the time of such mailing, so long as such Holders
covenant and agree to keep such information confidential, within 105 (or, at
such time as the Company is subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, 90) days after the end of each of the Company's
fiscal years and within 60 (or, at such time as the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, 45) days
after the end of each of the first three quarters of each fiscal year. If the
Trustee (at the Company's request and expense) is to mail the foregoing
information to the Holders, the Company shall supply such information to the
Trustee at least five days prior thereto.
(c) The Company will, upon request, provide to any Holder of
Securities or any prospective transferee of any such Holder any information
concerning the Company (including financial statements) necessary in order to
permit such Holder to sell or transfer Securities in compliance with Rule 144A
under the Securities Act.
(d) At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a Holder of a Series A Note, the
Company will promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchaser of such Series
A Note designated by such Holder, as the case may be, in order to permit
compliance by such Holder with Rule 144A under the Securities Act.
SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power
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herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with or for the
benefit of, an Affiliate of the Company or any Subsidiary or Unrestricted
Subsidiary of the Company (other than transactions between the Company and a
wholly owned Subsidiary of the Company or among wholly owned Subsidiaries of the
Company) (an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under Section 4.11(b) and (y) Affiliate Transactions (including lease
transactions) on terms that are no less favorable in the aggregate than those
that might reasonably have been obtained in a comparable transaction on an arm's
length basis (as determined in good faith by the Board of Directors of the
Company, as evidenced by a Board Resolution) from a person that is not an
Affiliate; provided that, except as otherwise provided by Section 4.11(b),
neither the Company nor any of its Subsidiaries shall enter into an Affiliate
Transaction or series of related Affiliate Transactions involving or having a
value of more than $5,000,000 unless the Company or such Subsidiary, as the case
may be, has received an opinion from an Independent Financial Advisor, with a
copy thereof to the Trustee, to the effect that the financial terms of such
Affiliate Transaction are fair and reasonable to the Company or such Subsidiary,
as the case may be, and is on terms no less favorable to the Company or such
Subsidiary, as the case may be, than those that could be obtained in a
comparable transaction on an arm's length basis with a person that is not an
Affiliate.
(b) The provisions of Section 4.11(a) shall not apply to (i) any
Restricted Payment that is made in compliance with the provisions of Section
4.03, (ii) the payment by Xxxxx Xxxxx of management fees to Xxxx Capital in an
amount equal to $1,000,000 per twelve-month period (the "Annual Management Fee
Amount") ending on September 30 of each year subsequent to the Issue Date (each
an "Annual Period"), beginning with the Annual Period ending on September 30,
1993, plus out-of-pocket expenses not to exceed $156,000 in any such Annual
Period. The Annual Management Fee Amount shall be payable in equal quarterly
installments of $250,000 on or after the last day of each
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calendar quarter ("Quarterly Payments") and out-of-pocket expenses shall be
payable as and when incurred; provided that, after giving effect to such payment
(unless such payment has already been accrued) in the event that the Company's
Consolidated Fixed Charge Coverage Ratio for the twelve-month period ending on
each such calendar quarter is less than 1.0 to 1.0, then the Quarterly Payments
shall be reduced by an amount equal to the sum of $125,000 plus the amount of
out-of-pocket expenses paid by Xxxxx Xxxxx to Xxxx Capital in such calendar
quarter; provided, further, that in determining the Company's Consolidated Fixed
Charge Coverage Ratio for purpose of the immediately preceding proviso only,
interest expense on Indebtedness outstanding under the Credit Agreement shall be
calculated based upon interest rates in effect on the Issue Date; provided,
further, that prior to making any Quarterly Payment, the Company shall have
delivered to the Trustee an Officers' Certificate stating that such contemplated
Quarterly Payment will not violate the provisions of this Section 4.11(b);
provided, further, that for the period from the Issue Date through September 30,
1992, Xxxx Capital shall be entitled to be paid a management fee equal to
$16,500; (iii) the payment of a transaction fee to Xxxx Capital in connection
with the closing of the Acquisition in an amount not to exceed $2,500,000 plus
reasonable expenses and (iv) employment compensation arrangements with officers
of the Company and its Subsidiaries in the ordinary course of business.
SECTION 4.12. Limitation on Indebtedness.
(a) Except as set forth in this Section 4.12, the Company shall not,
and shall not permit any of its Subsidiaries to, after the Issue Date, directly
or indirectly, create, incur, assume, guarantee, become liable, contingently or
otherwise, with respect to, or otherwise become responsible for the payment of
(collectively "incur") any Indebtedness other than Permitted Indebtedness.
(b) Notwithstanding Section 4.12(a), the Company or any of its
Subsidiaries may incur Indebtedness (including Acquired Indebtedness) if (A) no
Default or Event of Default shall have occurred and be continuing at the time of
or as a consequence of the incurrence of such Indebtedness and (B) the
Consolidated Fixed Charge Coverage Ratio of the Company, measured on the date of
the incurrence of such Indebtedness, is greater than 1.5 to 1.0 if such date is
on or prior to September 15, 1994; greater than 1.75 to 1.0 if such date is
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after September 15, 1994 and on or prior to September 15, 1996; and greater than
2.0 to 1.0 thereafter.
(c) Notwithstanding Sections 4.12(a) and (b), the Company shall not
incur any Indebtedness unless such Indebtedness is expressly subordinate in
right of payment to the Securities. The restriction set forth in this Section
4.12(c) shall not apply to guarantees by the Company of Indebtedness of any of
the Company's Subsidiaries referred to in clauses (i), (ii) and (iii) of the
definition of the term "Senior Indebtedness" herein.
SECTION 4.13. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
of the Company to (a) pay dividends or make any other distributions on its
Capital Stock, or any other interest or participation in, or measured by, its
profits, owned by the Company or any Subsidiary of the Company, or pay any
Indebtedness owed to the Company or a Subsidiary of the Company, (b) make loans
or advances to the Company or a Subsidiary of the Company, or (c) transfer any
of its properties or assets to the Company, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Indenture, (iii) customary nonassignment provisions of any lease governing a
leasehold interest of the Company or any Subsidiary of the Company, (iv) any
instrument governing Indebtedness of a person acquired by the Company or any
Subsidiary of the Company at the time 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 its Subsidiaries so acquired, (v) Indebtedness
existing on the Issue Date, including, without limitation, the Senior Notes, the
Term Loan Facility and the Working Capital Facility or any refinancing,
refunding, replacement or extension of the Senior Notes, the Term Loan Facility
or the Working Capital Facility; provided that any such encumbrance or
restriction contained in any refinancing, refunding, replacement or extension of
the Senior Notes, the Term Loan Facility or the Working Capital Facility shall
be no more restrictive than such encumbrance or restriction contained in the
Credit Agreement as in effect on the Issue Date, or (vi) Indebtedness permitted
to be incurred under the indenture governing the Senior Notes, the Credit
Agreement and this
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Indenture; provided that any such encumbrance or restriction contained in any
such Indebtedness shall be no more restrictive than such encumbrance or
restriction contained in the Credit Agreement as in effect on the Issue Date.
SECTION 4.14. Limitation on Liens.
The Company will not, and will not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any Liens upon any of its assets,
except for permitted Liens.
SECTION 4.15. Change of Control.
(a) In the event of a Change of Control, the Company shall be
obligated to make an offer to purchase all outstanding Securities pursuant to
the offer described in paragraph (b), below (the "Change of Control Offer"), at
a purchase price equal to 101% of the Accreted Value or principal amount, as the
case may be, thereof plus accrued interest, if any, to the date of purchase.
Prior to the repurchase of Securities pursuant to this Section 4.15(a), the
Company shall have or shall have caused each Subsidiary of the Company to have
(i) repurchased in full all outstanding Indebtedness pursuant to the Credit
Agreement, the Senior Notes and all Senior Indebtedness of the Company which
pursuant to its terms is required to be repurchased upon such Change of Control,
or shall have offered to repurchase and shall have repurchased such Indebtedness
from any holder of such Indebtedness who accepted such offer, or (ii) obtained
the requisite consents from holders of such Indebtedness to permit the
repurchase of the Securities as provided for under this Section 4.15(a). Failure
to have satisfied this condition precedent to the repurchase of the Securities
shall constitute a Default under Section 6.01(3) and shall not constitute a
payment default under Section 6.01(2). Within 10 days after the date upon which
the Change of Control occurred (the "Change of Control Date") requiring the
Company to make a Change of Control Offer pursuant to this Section 4.15, the
Company shall so notify the Trustee.
(b) The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Change of Control Offer. Within 20 Business Days following any Change of Control
Date, the Company shall send, by first class mail, a notice to each Holder, with
copies to the Trustee, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state:
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(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Securities tendered will be accepted for
payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 20 Business Days nor
later than 40 Business Days from the date such notice is mailed, other
than as may be required by law) (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue interest
if interest is then accruing;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
Change of Control Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the last page of
the Security completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later, than two Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Securities or portions
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thereof tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the purchase price of all
Securities so tendered and (iii) deliver to the Trustee Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail to such Holders new
Securities equal in principal amount to any unpurchased portion of the
Securities surrendered. Any Securities not so accepted shall be promptly mailed
by the Company to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date. For purposes of this Section 4.15, the Trustee
shall act as the Paying Agent.
SECTION 4.16. Limitation on Asset Sales.
The Company will not, and will not permit any of its Subsidiaries
to, make any Asset Sale, unless (i) the Company or the applicable Subsidiary, as
the case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets sold or otherwise disposed of (as
determined in good faith by the Board of Directors of the Company, as evidenced
by a Board Resolution; provided that to the extent the consideration received in
connection with an Asset Sale exceeds $2,000,000, such fair market value shall
be corroborated by an Independent Financial Advisor), (ii) at least 80% of the
consideration received by the Company or such Subsidiary, as the case may be,
from such Asset Sale shall be cash or Cash Equivalents (except in the case of
any Asset Sale which constitutes an Asset Swap) and (iii) upon the consummation
of an Asset Sale, the Company shall either (A) reinvest or cause its Subsidiary
to reinvest, the Net Cash Proceeds of any Asset Sale in Productive Assets within
180 days of the receipt of such Net Cash Proceeds, except in the case of an
Asset Sale for which a Credit Agreement Reinvestment Notice has been given, as
to which the time period to reinvest in Productive Assets shall be 360 days, (B)
to the extent such Net Cash Proceeds are required by the terms of the Credit
Agreement to be applied to repay, and permanently reduce the commitments under,
any outstanding Indebtedness under the Credit Agreement, apply or cause such Net
Cash Proceeds to be applied to the repayment of outstanding Indebtedness under
the Credit Agreement within 120 days of the receipt of such Net Cash Proceeds
(except as to Net Cash Proceeds relating to an Asset Sale for which a Credit
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Agreement Reinvestment Notice has been given and not reinvested in Productive
Assets within 360 days, as to which the time period shall be within 390 days of
the receipt of such Net Cash Proceeds), (C) to the extent such Net Cash Proceeds
are required by the terms of the indenture governing the Senior Notes to be
applied to repurchase any Senior Notes, to apply or cause such Net Cash Proceeds
to be applied to the repurchase of Senior Notes within 120 days of the receipt
of such Net Cash Proceeds (except as to Net Cash Proceeds relating to an Asset
Sale for which a Credit Agreement Reinvestment Notice has been given and not
reinvested in Productive Assets within 360 days, as to which the time period
shall be within 390 days of the receipt of such Net Cash Proceeds), or (D) after
the occurrence of a Net Proceeds Offer Trigger Date, make a Net Proceeds Offer
pursuant to Section 3.07; provided, however, that if at any time any non-cash
consideration received by the Company or any Subsidiary of the Company, as the
case may be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash, then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof
shall be applied in accordance with clause (iii) of this Section 4.16; provided,
further, that the Company may defer making a Net Proceeds Offer until the
aggregate Net Cash Proceeds from Asset Sales to be applied equals or exceeds
$2,000,000.
SECTION 4.17. Conduct of Business.
The Company and its Subsidiaries will not engage in any businesses
which are not the same, similar or related to the businesses in which the
Company or its Subsidiaries is engaged on the Issue Date, it being understood
that nothing in this Section 4.17 shall limit the ability of the Company or its
Subsidiaries to introduce or sell new product lines into its stores from time to
time.
SECTION 4.18. Unrestricted Subsidiaries.
(a) The Company shall not transfer to any Unrestricted Subsidiary
any Capital Stock of Daboco owned by the Company on the Issue Date. Daboco and
Xxxxx Xxxxx Inc. shall not transfer any equity interests in Xxxxx Xxxxx to any
Unrestricted Subsidiary.
(b) Promptly after the adoption of any Board Resolution designating
an entity as an Unrestricted Subsidiary, a copy thereof shall be filed with the
Trustee, together with an
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Officers' Certificate stating that the provisions of this Section have been
complied with in connection with such designation.
(c) The Company shall not designate any Unrestricted Subsidiary as a
Subsidiary.
(d) At the date of this Indenture there shall be no Unrestricted
Subsidiaries.
SECTION 4.19. Limitation on Guarantees by Affiliates.
The Company will not permit any of its Affiliates to guarantee the
payment of any Indebtedness of the Company, unless such Affiliate simultaneously
executes and delivers a supplemental indenture evidencing its senior guarantee
of the Company's obligations under the Securities and this Indenture.
SECTION 4.20. Restrictions on Sale of Stock of Subsidiaries.
(a) The Company will not permit any of its Subsidiaries to issue any
Preferred Stock (other than to the Company or to a wholly owned Subsidiary of
the Company and other than (i) Permitted Preferred Stock and (ii) Permitted PIK
Preferred Stock having a liquidation preference not to exceed $9,000,000 in the
aggregate less any Permitted Accreted Amount and less any Permitted PIK Interest
at any time outstanding) or permit any person (other than the Company or a
wholly owned Subsidiary of the Company) to own any Preferred Stock of any
Subsidiary of the Company (other than (i) Permitted Preferred Stock and (ii)
Permitted PIK Preferred Stock having a liquidation preference not to exceed
$9,000,000 in the aggregate less any Permitted Accreted Amount and less any
Permitted PIK Interest at any time outstanding).
(b) The Company will not permit any of its Subsidiaries to issue any
Capital Stock (other than Preferred Stock (which is governed by clause (a)
above) and other than to the Company or to a wholly owned Subsidiary of the
Company) or permit any person (other than the Company or a wholly owned
Subsidiary of the Company) to own any Capital Stock (other than Preferred Stock
(which is governed by clause (a) above)) of any Subsidiary of the Company (other
than in the case of a sale of 100% of the Capital Stock of a Subsidiary of the
Company); provided that this Section 4.20(b) shall not apply to any Subsidiary
of the Company (other than a wholly owned Subsidiary) that
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became a Subsidiary of the Company pursuant to the making of an Investment that
complied with Section 4.03.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.
(a) The Company shall not, in a single transaction or through a
series of related transactions, (i) consolidate with or merge with or into any
other person, or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties and assets as an entirety or
substantially as an entirety to another person or group of affiliated persons or
(ii) adopt a Plan of Liquidation, unless, in either case:
(1) either the Company is the continuing person, or the person (if
other than the Company) formed by such consolidation or into which the
Company is merged or to which all or substantially all of the properties
and assets of the Company as an entirety or substantially as an entirety
are transferred (or, in the case of a Plan of Liquidation, any person to
which assets are transferred) (the Company or such other person being
hereinafter referred to as the "Surviving Person") is a corporation,
partnership or trust organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia, and
expressly assumes, by an indenture supplemental hereto, executed and
delivered to the Trustee on or prior to the consummation of such
transaction, in form satisfactory to the Trustee, all the obligations of
the Company under the Securities and this Indenture;
(2) immediately after giving effect to such transaction on a pro
forma basis (including any Indebtedness incurred or anticipated to be
incurred in connection with such transaction), the Consolidated Net Worth
of the Surviving Person (as adjusted to include any preferred stock (other
than Disqualified Capital Stock) to be outstanding after giving effect to
such transaction) is at least equal to the Consolidated Net Worth of the
Company immediately prior to such transaction;
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(3) immediately after giving effect to such transaction on a pro
forma basis (including any Indebtedness incurred or anticipated to be
incurred in connection with such transaction), the Consolidated Fixed
Charge Coverage Ratio of the Surviving Person is at least equal to the
Consolidated Fixed Charge Coverage Ratio of the Company immediately prior
to such transaction;
(4) immediately after giving effect to such transaction and the
assumption of the obligations as set forth in clause (1) above and the
incurrence or anticipated incurrence of any Indebtedness to be incurred in
connection therewith, no Default or Event of Default shall have occurred
and be continuing; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or adoption and such supplemental
indenture comply with this Article Five, that the Surviving Person agrees
to be bound hereby, and that all conditions precedent herein provided
relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the sale, assignment, transfer,
lease, conveyance, sale or other disposition, in a single transaction or series
of transactions, of all or substantially all of the properties and assets of one
or more Subsidiaries of the Company, the Capital Stock of which constitutes all
or substantially all of the properties and assets of the Company shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the Securities
and agrees to be bound hereby and thereby, the predecessor shall be released
from such obligations.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Securities when the same becomes due and payable and the Default continues
for a period of 30 days, whether or not such payment is prohibited by
Article Eleven hereof;
(2) the Company defaults in the payment of the stated principal
amount or Accreted Value, as the case may be, of any Securities when the
same becomes due and payable at maturity, upon acceleration, or redemption
pursuant to an offer to purchase required hereunder or otherwise, whether
or not such payment is prohibited by Article Eleven hereof;
(3) the Company fails to comply in all material respects with any of
its other agreements contained in the Securities or this Indenture and the
Default continues for the period and after the notice specified below;
(4) there shall be a default under any bond, debenture, or other
evidence of Indebtedness of the Company or any Significant Subsidiary or
under any mortgage, indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of
the Company or any Significant Subsidiary whether such Indebtedness now
exists or shall hereafter be created, if both (a) such default either (i)
results from the failure to pay any such Indebtedness at its stated final
maturity (that is, the date of the last principal installment of any
installment Indebtedness under the instrument or agreement pursuant to or
under which such Indebtedness was created or is evidenced) or (ii) relates
to an obligation other than the obligation to pay any principal of such
Indebtedness at its stated final maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due prior
to its stated maturity and (b) the principal amount of such Indebtedness,
together with the principal amount of any
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other such Indebtedness in default for failure to pay principal at stated
final maturity or the maturity of which has been so accelerated, is
$12,500,000 or more individually or in the aggregate;
(5) one or more judgments, orders or decrees for the payment of
money which either individually or in the aggregate at any one time
exceeds $12,500,000 shall be rendered against the Company (or, at such
time as the Credit Agreement has been terminated and all amounts
thereunder have been paid in full, any Significant Subsidiary) by a court
of competent jurisdiction and shall remain undischarged and unbonded for a
period (during which execution shall not be effectively stayed) of 60
consecutive days after such judgment becomes final and nonappealable;
(6) the Company or any Significant Subsidiary (A) admits in writing
its inability to pay its debts generally as they become due, (B) commences
a voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (C) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (D) consents to the appointment of a Custodian of it or
for substantially all of its property, (E) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(F) makes a general assignment for the benefit of its creditors, or (G)
takes any corporate action to authorize or effect any of the foregoing;
and
(7) a court of competent jurisdiction enters a judgment , decree or
order for relief in respect of the Company or any Significant Subsidiary
in an involuntary case or proceeding under any Bankruptcy Law, which shall
(A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any
Significant Subsidiary, (B) appoint a Custodian of the Company or any
Significant Subsidiary or for substantially all of its property or (C)
order the winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period of 60
consecutive days.
A Default under clause (3) above (other than in the case of any
Default under Section 4.15 or 5.01) is not an Event of Default until the Trustee
notifies the Company, or the
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Holders of at least 25% in Accreted Value or principal amount, as the case may
be, of the outstanding Securities notify the Company and the Trustee of the
Default, and the Company does not cure the Default within 30 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a Notice of Default." Such notice shall be given by
the Trustee if so requested by the Holders of at least 25% in Accreted Value or
principal amount, as the case may be, of the Securities then outstanding. A
Default under clause (5) above shall be an Event of Default with the notice
specified in this paragraph but without the passage of time referred to in this
paragraph.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company) occurs and is continuing,
the Trustee may, by notice to the Company, or the Holders of at least 25% in
Accreted Value or principal amount, as the case may be, of the Securities then
outstanding may, by written notice to the Company and the Trustee, and the
Trustee shall, upon the request of such Holders, declare the aggregate Accreted
Value or principal amount, as the case may be, of the Securities outstanding,
together with accrued but unpaid interest thereon to the date of payment, to be
due and payable and, upon any such declaration, the same shall become and be due
and payable; provided, however, that the Trustee shall be under no obligation to
follow any request of any of the Holders unless such Holders shall have offered
to the Trustee, after request by the Trustee, reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred by it in
compliance with such request, order or direction; provided, further, that such
declaration shall not be effective until the earlier to occur of (i) 5 days
following delivery of a written notice of such acceleration to the agent under
the Credit Agreement and (ii) the acceleration of any Indebtedness (or other
amounts) under the Credit Agreement. If an Event of Default specified in Section
6.01(6) or (7) occurs with respect to the Company, all Accreted Value or unpaid
principal, as the case may be, and accrued interest on the Securities then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholder.
Upon payment of such Accreted Value or principal amount, as the case may be, and
interest, all of the Company's obligations under the Securities and this
Indenture, other than obligations under Section 7.07, shall terminate. The
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Holders of a majority in Accreted Value or principal amount, as the case may be,
of the Securities then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default, other
than the non-payment of the principal and interest on the Securities which have
become due solely by such declaration of acceleration, have been cured or
waived, (ii) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid, and (iii) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. No such rescission shall affect any subsequent default
or impair any right consequent thereto. In the event that a declaration of
acceleration under Section 6.01(4) above has occurred and is continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or paid or the
holders of such Indebtedness shall have rescinded their declaration of
acceleration in respect of such Indebtedness within 60 days thereafter and no
other Event of Default has occurred during such 60-day period which has not 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 by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
Accreted Value or principal amount, as the case may be, of the outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its
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consequences, except a Default in the payment of principal of or interest on any
Security as specified in clauses (1) and (2) of Section 6.01.
SECTION 6.05. Control by Majority.
The Holders of a majority in Accreted Value or principal amount, as
the case may be, of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it including, without limitation, any
remedies provided for in Section 6.03. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this
Indenture that the Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal liability;
provided that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) Holders of at least 25% in Accreted Value or principal amount,
as the case may be, of the outstanding Securities make a written request
to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee reasonable indemnity against
any loss, liability or expense to be incurred in compliance with such
request;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer of satisfactory indemnity; and
(5) during such 45-day period the Holders of a majority in Accreted
Value or principal amount, as the case may be, of the outstanding
Securities do not give the Trustee a direction which, in the opinion of
the Trustee, is inconsistent with the request.
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A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of principal
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest, in each case at the rate per annum borne by
the Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Securityholder 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 Securityholders, to pay to the Trustee
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any amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the
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claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit
by a Holder or Holders of more than 10% in Accreted Value or principal amount,
as the case may be, of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates 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 liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree with the Company. Assets
held in trust by the Trustee need not be segregated from other assets except to
the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 12.04 and 12.05. The Trustee
shall not be
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liable for any action it takes or omits to take in good faith in reliance
on such certificate or opinion.
(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 that it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon reasonable
notice to the Company, to examine the books, records, and premises of the
Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request,
order or direction.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from
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the Securities, and it shall not be responsible for any statement in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Securityholder, as
their names and addresses appear on the Securityholder list described in Section
2.05, notice of the uncured Default or Event of Default within 90 days after the
Trustee obtains actual knowledge that such Default or Event of Default has
occurred. The provisions of TIA S 3.15(b) are specifically excluded from this
Indenture.
SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of this Indenture
until this Indenture is qualified under the TIA, and, until such qualification,
this Indenture shall be construed as if this Section 7.06 were not contained
herein.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of the
events described in TIA ss. 313(a) occurred within the previous twelve months,
but not otherwise, mail to each Securityholder a brief report dated as of such
May 15 that complies with TIA S 313(a). The Trustee also shall comply with TIA
ss. 313(b) and 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become 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 services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all tax obligations imposed on the
Trustee related to this Indenture and all reasonable out-of-pocket expenses
incurred or made by it. Such expenses shall
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include the reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents for, and hold
them harmless against, any loss, liability or expense incurred by them except
for such actions to the extent caused by any negligence or bad faith on their
part, arising out of or in connection with the administration of this trust
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their rights, powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. 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; provided that the Company will not
be required to pay such fees and expenses if it assumes the Trustee's defense
and there is no conflict of interest between the Company and the Trustee in
connection with such defense as reasonably determined by the Trustee. The
Company need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in Accreted Value or principal amount, as the case may be, of the
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee and may appoint a successor trustee. The Company may remove the
Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in Accreted Value or
principal amount, as the case may be, of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
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 Accreted Value or principal amount, as the case
may be, of the outstanding Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
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SECTION 7.09. Successor Trustee by Merger. Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA ss.ss.310(a)(1) and 310(a)(5). The Trustee (or in the case of
a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA ss.310(a)(2). The Trustee shall
comply with TIA ss.310(b); provided, however, that there shall be excluded from
the operation of TIA ss.310(b)(l) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA ss.310(b)(l) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss.311(b). A Trustee who has resigned or been removed
shall be subject to TIA ss.311(a) to the extent indicated therein.
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ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Satisfaction, Discharge of the Indenture and Defeasance of the
Securities.
The Company shall be deemed to have paid and discharged the entire
Indebtedness on the Securities and the provisions of this Indenture (subject to
Section 8.03), if:
(1) The Company irrevocably deposits in trust with the Trustee,
pursuant to an irrevocable trust and security agreement in form and
substance satisfactory to the Trustee, U.S. Legal Tender or direct
non-callable obligations of, or non-callable obligations guaranteed by,
the United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of America is
pledged ("U.S. Government Obligations") maturing as to principal and
interest in such amounts and at such times as are sufficient, without
consideration of the reinvestment of such interest and after payment of
all Federal, state and local taxes or other charges or assessments in
respect thereof payable by the Trustee, in the opinion of the Chief
Financial Officer of the Company expressed in a written certification
thereof (in form and substance reasonably satisfactory to the Trustee)
delivered to the Trustee, to pay the principal of and interest on the
outstanding Securities on the dates (including any Redemption Date) on
which any such payments are due and payable in accordance with the terms
of the Indenture and of the Securities;
(2) Such deposits shall not cause the Trustee to have a conflicting
interest as defined in and for purposes of the TIA;
(3) No Default or Event of Default (i) shall have occurred and be
continuing on the date of such deposit or (ii) shall occur on or before
the 91st day after the date of such deposit;
(4) Such deposit will not result in a Default under this Indenture
or a breach or violation of, or constitute a default under, any other
instrument or agreement (including, without limitation, the Credit
Agreement) to
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which the Company or any Subsidiary of the Company is a party or by which
it or its property is bound;
(5) The Company shall deliver to the Trustee an Opinion of Counsel,
in form and substance reasonably satisfactory to the Trustee, to the
effect that Holders of the Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to Federal income tax
in the same amounts and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred;
(6) The deposit shall not result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(7) The Holders shall have a perfected security interest under
applicable law in the U.S. Legal Tender or u.s. Government Obligations
deposited pursuant to Section 8.01(1) above;
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel, in form and substance reasonably satisfactory to the Trustee, to
the effect that, after the passage of 90 days following the deposit, the
trust funds will not be subject to any applicable bankruptcy, insolvency,
reorganization or similar law affecting creditors' rights generally; and
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by this
Section 8.01 have been complied with; provided, however, that no deposit
under clause (1) above shall be effective to terminate the obligations of
the Company under the Securities or this Indenture prior to 90 days
following any such deposit.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of the notice of
such redemption or redemptions by the Trustee in the name and at the expense or
the Company. In connection with the issuance of debt
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securities the proceeds of which will be used to redeem all the Securities then
outstanding, neither Sections 4.12, 4.13 nor Section 4.14 shall be violated by
the issuance of such debt securities to the extent the Company complies with all
of the provisions of this Section 8.01 other than Section 8.0l(3)(ii).
SECTION 8.02. Termination of Obligations upon Cancellation of the Securities.
In addition to the Company's rights under Section 8.01, the Company
may terminate all of its obligations under this Indenture (subject to Section
8.03) when:
(1) all Securities theretofore authenticated and delivered (other
than Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07) have been delivered to
the Trustee for cancellation;
(2) the Company has paid or caused to be paid all other sums payable
hereunder and under the Securities by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the satisfaction and discharge of
this Indenture have been complied with.
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and
of the Securities referred to in Section 8.01 or 8.02, the respective
obligations of the Company and the Trustee under Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.13, 4.01, 4.02, 6.07, 7.07, 7.08, 8.05, 8.06 and 8.07 shall
survive until the Securities are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 7.07, 8.05, 8.06 and
8.07 shall survive. Nothing contained in this Article Eight shall abrogate any
of the obligations or duties of the Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of Section 8.01 or
8.02 have been satisfied, (ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company and (iii) the Company has delivered
to the Trustee
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an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
Section 8.01. The Trustee shall apply the deposited U.S. Legal Tender or the
U.S. Government Obligations, together with earnings thereon, through the Paying
Agent (other than the Company or any Subsidiary of the Company), in accordance
with this Indenture and the terms of the irrevocable trust agreement established
pursuant to Section 8.01, to the payment of principal of and interest on the
Securities. The U.S. Legal Tender or U.S. Government Obligations so held in
trust and deposited with the Trustee in compliance with Section 8.01 shall not
be part of the trust estate under this Indenture, but shall constitute a
separate trust fund for the benefit of all Holders entitled thereto.
SECTION 8.06. Repayment to the Company.
Upon termination of the trust established pursuant to Section 8.01,
the Trustee and the Paying Agent shall promptly pay to the Company upon request
any excess U.S. Legal Tender or U.S. Government Obligations held by them.
The Trustee and the Paying Agent shall pay to the Company upon
request, and, if applicable, in accordance with the irrevocable trust
established pursuant to Section 8.01 or 8.02, any U.S. Legal Tender or U.S.
Government Obligations held by them for the payment of principal of or interest
on the Securities that remain unclaimed for one year after the date on which
such payment shall have become due. After payment to the Company, Holders
entitled to such payment must look to the Company for such payment as general
creditors unless an applicable abandoned property law designates another person.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance
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with Section 8.01 or 8.02 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01 or 8.02 until such time as the
Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S.
Government Obligations in accordance with Section 8.01 or 8.02.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any other change that does not materially adversely
affect the rights of any Securityholders hereunder; or
(5) to comply with any requirements of the SEC in connection with
the qualification of this Indenture under the TIA;
provided that the Company has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
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SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate Accreted Value or principal amount,
as the case may be, of the outstanding Securities, may amend or supplement this
Indenture or the Securities, without notice to any other Securityholders.
Subject to Section 6.07, the Holder or Holders of a majority in aggregate
Accreted Value or principal amount, as the case may be, of the outstanding
Securities may waive compliance by the Company with any provision of this
Indenture or the Securities without notice to any other Securityholder. Without
the consent of each Securityholder affected, however, no amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may:
(1) change the Accreted Value or principal amount, as the case may
be, of Securities whose Holders must consent to an amendment, supplement
or waiver of any provision of this Indenture or the Securities;
(2) reduce the rate or extend the time for payment of interest on
any Security;
(3) reduce the rate of accretion of purchase discount on any
Security;
(4) reduce the stated principal amount of any Security at the
Maturity Date or the Accreted Value;
(5) change the Maturity Date of any Security, or alter the
redemption provisions contained in Paragraph 7 of the Securities in a
manner adverse to any Holder;
(6) make any changes in the provisions concerning waivers of
Defaults or Events of Defaults by Holders of the Securities or the rights
of Holders to recover the principal of, interest on, or redemption
payments or payments arising out of offers to purchase with respect to,
any Security;
(7) make any changes in Section 6.04, 6.07 or this third sentence of
this Section 9.02;
(8) make the principal of, or the interest on any Security payable
in money other than as provided for in
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the Indenture and the Securities as in effect on the date hereof; or
(9) affect the ranking of the Securities in a manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with TIA.
From the date on which the Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite Accreted
Value or principal amount, as the case may be, of Securities have consented (and
not theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
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notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders at such record date (or their duly designated proxies),
and only those persons, shall be entitled to revoke any consent previously
given, whether or not such persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (8) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
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ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. Purposes for Which Meetings May Be Called.
A meeting of Securityholders may be called at any time and from time
to time pursuant to the provisions of this Article Ten for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to any
of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 9.02; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holders of any specified aggregate Accreted Value or
principal amount, as the case may be, of the Securities under any other
provision of this Indenture, or authorized or permitted by law or (ii)
which the Trustee deems necessary or appropriate in connection with the
administration of this Indenture.
SECTION 10.02. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Securityholders to
take any action specified in Section 10.01, to be held at such time and at such
place in The City of New York, New York or elsewhere as the Trustee shall
determine. Notice of every meeting of Securityholders, setting forth the time
and place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed by the Trustee, first-class postage prepaid,
to the Company and to the Holders at their last addresses as they shall appear
on the registration books of the Registrar not less than 10 nor more than 60
days prior to the date fixed for a meeting.
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Any meeting of Securityholders shall be valid without notice if the
Holders of all Securities then outstanding are present in person or by proxy, or
if notice is waived before or after the meeting by the Holders of all Securities
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
SECTION 10.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of not less than 10% in aggregate Accreted Value or principal
amount, as the case may be, of the Securities then outstanding shall have
requested the Trustee to call a meeting of Securityholders to take any action
specified in Section 10.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders of Securities in the amount above
specified may determine the time and place in The City of New York, New York or
elsewhere for such meeting and may call such meeting for the purpose of taking
such action, by mailing or causing to be mailed notice thereof as provided in
Section 10.02, or by causing notice thereof to be published at least once in
each of two successive calendar weeks (on any Business Day during such week) in
a newspaper or newspapers printed in the English language, customarily published
at least five days a week and of a general circulation in The City of New York,
State of New York, the first such publication to be not less than 10 nor more
than 60 days prior to the date fixed for the meeting.
SECTION 10.04. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Securityholders, a person
shall (a) be a registered Holder of one or more Securities, or (b) be a person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of Securities. The only persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the persons entitled to vote
at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
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SECTION 10.05. Regulations May Be Made by Trustee; Conduct of the Meeting;
Voting Rights; Adjournment.
Notwithstanding any other provision of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any action by
or any meeting of Securityholders, in regard to proof of the holding of
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, and submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think appropriate. Such
regulations may fix a record date and time for determining the Holders of record
of Securities entitled to vote at such meeting, in which case those and only
those persons who are Holders of Securities at the record date and time so
fixed, or their proxies, shall be entitled to vote at such meeting whether or
not they shall be such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 10.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in Accreted Value or principal amount, as the case may be, of the Securities
represented at the meeting and entitled to vote.
At any meeting each Securityholder or proxy shall be entitled to one
vote for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Securities challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman may adjourn any such
meeting if he is unable to determine whether any Holder or proxy shall be
entitled to vote at such meeting. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments in
writing as aforesaid duly designating him as the proxy to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 10.02 or Section 10.03 may be adjourned from time to
time by vote of the Holders of a majority in aggregate Accreted Value or
principal amount, as the case may be, of the
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Securities represented at the meeting and entitled to vote, and the meeting may
be held as so adjourned without further notice.
SECTION 10.06. Voting at the Meeting and Record To Be Kept.
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the Accreted Value or principal amount, as the case may be, of the Securities
voted by the ballot. The permanent chairman of the meeting shall appoint two
inspectors of votes, who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to such record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts, setting forth a copy of the notice of the meeting and
showing that such notice was mailed as provided in Section 10.02 or published as
provided in Section 10.03. The record shall be signed and verified by the
affidavits of the permanent chairman and the secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 10.07. Exercise of Rights of Trustee or Securityholders May Not Be
Hindered or Delayed by Call of Meeting.
Nothing contained in this Article Ten shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Securityholders or
any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders under any of the provisions of
this Indenture or of the Securities.
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ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. Securities Subordinated to Senior Indebtedness.
The Company, for itself and its successors, and each Holder, by its
acceptance of Securities, agrees, that the payment of the principal of and
interest on the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article Eleven, to the prior payment in full
of all Senior Indebtedness, including interest accruing after the filing of a
petition initiating any proceeding pursuant to any Bankruptcy Law, whether or
not such interest is an allowed claim.
This Article Eleven shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder and
they and/or each of them may enforce such provisions.
SECTION 11.02. No Payment on Securities in Certain Circumstances.
(a) Upon any default in the payment of any Senior Indebtedness when
due and payable, whether at maturity, upon any redemption, by declaration or
otherwise, such Senior Indebtedness shall first be paid in full, or such payment
duly provided for, before any payment is made on account of principal of or
interest on the Securities or to acquire any of the Securities or on account of
the redemption provisions for the Securities.
(b) Upon the occurrence of any other event of default with respect
to any Senior Indebtedness, as such event of default is defined therein,
permitting the holders to accelerate the maturity thereof, and, upon written
notice thereof given to the Company and the Trustee by one or more holders of
such Senior Indebtedness or their Representative (a "Default Notice"), then,
unless and until such event of default shall have been cured or waived or shall
have ceased to exist or the Trustee receives notice from such holder or holders
of Senior Indebtedness (or such Representative) terminating the Blockage Period
(as defined below), no payment shall be made by the
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Company with respect to the principal of or interest on the Securities or to
acquire any of the Securities or on account of the redemption provisions for the
Securities; provided, however, that if such Senior Indebtedness has not been
accelerated or become the subject of judicial proceedings within 180 days after
the delivery of such Default Notice (the "Blockage Period"), then the Company
shall resume making any and all required payments in respect of the Securities.
At the expiration of such Blockage Period the Company shall, subject to
subsection (a) of this Section 11.02, promptly pay to the Trustee all sums not
paid during such Blockage Period as a result of this subsection (b).
Notwithstanding the foregoing, (i) not more than one Default Notice shall be
given with respect to the Senior Indebtedness within a period of 360 consecutive
days, (ii) no default which existed or was continuing on the date of any Default
Notice shall be made the basis for the giving of a subsequent Default Notice and
(iii) if the Company or the Trustee receives any Default Notice, a similar
notice relating to or arising out of the same default or facts giving rise to
such default (whether or not such default is on the same issue of Senior
Indebtedness) shall not be effective for purposes of this subsection (b).
(c) In furtherance of the provisions of Section 11.01 and in the
event that, notwithstanding the foregoing provisions of Sections 11.02(a) and
(b), any payment on account of the principal of or interest on the Securities or
on account of the redemption provisions shall be made by or on behalf of the
Company, and received by the Trustee, by any Holder or by any Paying Agent (or,
if the Company is acting as its own Paying Agent, money for any such payment
shall be segregated and held in trust), at a time when such payment was
prohibited by the provisions of this Section 11.02, then, unless and until such
payment is no longer prohibited by this Section 11.02, such payment (subject to
the provisions of Sections 11.06 and 11.07) shall be held in trust for the
benefit of, and shall be immediately paid over to, the holders of Senior
Indebtedness or their respective Representatives, ratably according to the
aggregate amount of Senior Indebtedness held or represented by each, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution or
provision therefor to or for the holders of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default for failure to make payments of
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principal or interest on any Senior Indebtedness or a default which results in
the acceleration of any Senior Indebtedness, under any Senior Indebtedness or
under any agreement pursuant to which Senior Indebtedness may have been issued.
Failure to give such notice shall not affect the subordination of the Securities
to the Senior Indebtedness provided in this Article Eleven.
SECTION 11.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of
the Company.
Upon any distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution, winding up, liquidation or reorganization of the Company (whether
in voluntary or involuntary bankruptcy, insolvency or receivership proceedings
or upon any assignment for the benefit of creditors or otherwise):
(1) the holders of all Senior Indebtedness shall first receive
payment in full of the principal and interest and other amounts due
thereon (or have such payments duly provided for) before the Holders are
entitled to receive any payment on account of the principal of or interest
on or the redemption of the Securities;
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities to which the Holders
or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article Eleven shall be paid by the Company, the
liquidating trustee or agent or other person making such a payment or
distribution, directly to the holders of Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders) or their Representative, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent (or, if the Company is acting as its own
Paying Agent, money for any such payment or
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distribution shall be segregated or held in trust) on account of principal
of or interest on the Securities or on account of the redemption
provisions before all Senior Indebtedness is paid in full, or effective
provision made for its payment, then such payment or distribution shall be
received and held in trust for the benefit of and shall be immediately
paid over to the holders of the Senior Indebtedness remaining unpaid or
unprovided for (pro rata as to each of such holders on the basis of the
respective amounts of Senior Indebtedness held by them) or their
respective Representatives, for application to the payment of all Senior
Indebtedness until such Senior Indebtedness shall have been paid in full,
after giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company, but
failure to give such notice shall not affect the subordination of the Securities
tO the Senior Indebtedness provided in this Article Eleven.
SECTION 11.04. Securityholders To Be Subrogated to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of Securities shall be subrogated to the rights of the Holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full, and for the purpose of such subrogation no such payments
or distributions to the holders of Senior Indebtedness by or on behalf of the
Company or by or on behalf of the Holders by virtue of this Article Eleven,
which otherwise would have been made to the Holders, shall, as between the
Company and the Holders, be deemed to be payment by the Company to or on account
of the Senior Indebtedness, it being understood that the provisions of this
Article Eleven are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
SECTION 11.05. Obligations of the Company Unconditional.
Nothing contained in this Article Eleven or elsewhere in this
Indenture or in any Security is intended to or shall impair, as between the
Company and the Holders, the obligation
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of the Company, which is absolute and unconditional, to pay the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Eleven of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy. Upon any event requiring subordination in this Article Eleven, the
Trustee, subject to the provisions of Sections 7.01 and 7.02, and the Holders
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Indebtedness 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 Four.
SECTION 11.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee shall have received written notice
thereof from the Company or from one or more holders of Senior Indebtedness or
their respective Representatives and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Sections 7.01 and 7.02, shall
be entitled in all respects conclusively to assume that no such fact exists.
SECTION 11.07. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Section 8.01 shall be for
the sole benefit of Securityholders and, to the extent allocated for the payment
of Securities, shall not be subject to the subordination provisions of this
Article Eleven. Otherwise, any deposit of assets
-89-
by the Company with the Trustee or any Paying Agent (whether or not in trust)
for the payment of principal of or interest on any Securities shall be subject
to the provisions of Sections 11.01, 11.02, 11.03 and 11.04 except that, if at
least five Business Days prior to the date on which by the terms of this
Indenture any such assets may become payable for any purpose (including, without
limitation, the payment of either principal of or interest on any Security) the
Trustee shall not have received the notice provided for in Section 11.06, then
the Trustee shall have full power and authority to receive such assets and to
apply the same to the purpose for which they were received, and neither the
Trustee nor the Securityholders shall be affected by any notice to the contrary
which may be received by the Trustee on or after such date.
SECTION 11.08. Subordination Rights Not Impaired by Acts or Omissions of Company
or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may extend, renew, modify or amend the terms
of Senior Indebtedness or any security therefor and release, sell or exchange
such security and otherwise deal freely with the Company, all without affecting
the liabilities and obligations of the parties to the Indenture or the Holders
of the Securities or the rights of such Senior Indebtedness hereunder.
SECTION 11.09. Securityholders Authorize Trustee To Effectuate Subordination of
Securities.
Each Holder by its acceptance thereof authorizes and expressly
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate, as between the Holders and the holders
of Senior Indebtedness, the subordination provided in this Article Eleven and to
protect the rights of the Holders pursuant to this Indenture, and appoints the
Trustee its attorney-in-fact for such purpose, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment
-90-
for the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the immediate filing of a claim for the
unpaid balance of its Securities in the form required in said proceedings and
cause said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or proof, then the holders of
Senior Indebtedness or their Representative shall have the right to file and are
hereby authorized to file an appropriate claim or proof for and on behalf of the
Holders.
SECTION 11.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in
this Article Eleven in respect of any Senior Indebtedness at any time held by it
to the same extent as any other holder of Senior Indebtedness, and nothing in
this Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
SECTION 11.11. Article Eleven Not To Prevent Events of Default.
The failure to make a payment on account of principal or interest on
the Securities by reason of any provision of this Article Eleven shall not be
construed as preventing the occurrence of an Event of Default under Section 6.01
or 6.02.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 12.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or
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registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
Xxxxx Xxxxx Holding Corp.
x/x Xxxx Xxxxxxx
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, P.C. and
Xxxxxxx X. Xxxxxx, Esq.
if to the Trustee:
The Connecticut National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Each of the Company and the Trustee by written notice to each other
such person may designate additional or different addresses for notices to such
person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
faxed; and five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
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Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss.312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA ss.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:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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 the Officers'
Certificate required by Section 4.07, shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of such person, he 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 complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York or at such place of payment are not required to be open. If a payment date
is a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 12.08. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
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SECTION 12.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creations. Each Securityholder by
accepting a Security waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Securities.
SECTION 12.11. Holding Company Indebtedness.
Each Securityholder acknowledges that the Company is the sole
obligor of the Securities and no Subsidiary of the Company is a co-obligor or a
guarantor of the Securities.
SECTION 12.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 12.13. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 12.14. Severability.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
-95-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first written above.
Dated: September 25, 1992
XXXXX XXXXX HOLDING CORP.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: President
THE CONNECTICUT NATIONAL BANK
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT
EXHIBIT A
[FORM OF NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF AT ANY TIME IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION. THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (B) IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (C) TO
AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(l),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION (WITHIN THE MEANING OF
THE SECURITIES ACT), (D) TO THE COMPANY OR BT SECURITIES CORPORATION, THE
PLACEMENT AGENT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (F) PURSUANT TO AN EXEMPTION FROM
REGISTRATION AS CONFIRMED IN DOCUMENTATION (WHICH AT THE COMPANY'S DISCRETION
SHALL INCLUDE AN OPINION OF COUNSEL (WHICH MAY BE IN-HOUSE COUNSEL)) IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY (PROVIDED, HOWEVER, THAT IN THE
CASE OF CLAUSES (B) AND (C), EITHER THE TRANSFEREE OR A U.S. REGISTERED
BROKER-DEALER ON ITS BEHALF HAS DELIVERED TO THE COMPANY C/O THE TRUSTEE A
TRANSFEREE CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY). WITH RESPECT TO
TRANSFERS PURSUANT TO CLAUSES (A), (B) AND (C) ABOVE, THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES, FOR THE BENEFIT OF THE COMPANY,
THAT IT IS (i) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (ii) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(l), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION (WITHIN
THE MEANING OF THE SECURITIES ACT) OR (iii) A NON-U.S. PERSON THAT IS OUTSIDE
THE U.S. WITHIN THE MEANING OF (OR ACCOUNTS SATISFYING THE REQUIREMENTS OF
PARAGRAPH (O)(ii) OF RULE 902 UNDER) REGULATION S.
A-l
[THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES,
DETERMINED PURSUANT TO SECTIONS 1272 THROUGH 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND THE PROPOSED TREASURY REGULATIONS PROMULGATED
THEREUNDER, IN THE AMOUNT OF $____________ PER $1,000 FACE AMOUNT OF THIS
SECURITY. THE SECURITY WAS ISSUED ON SEPTEMBER 25, 1992, AND HAS A YIELD TO
MATURITY (INCLUSIVE OF CASH INTEREST) OF _________% BASED ON SEMIANNUAL
COMPOUNDING. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ALLOCABLE TO THE SHORT
INITIAL ACCRUAL PERIOD IS $____________ PER $1,000 FACE AMOUNT DETERMINED ON THE
BASIS OF THE [APPROXIMATE] METHOD.](1)
XXXXX XXXXX HOLDING CORP.
15% Senior Subordinated Zero Coupon Note
due September 15, 2004, Series A
No. $
XXXXX XXXXX HOLDING CORP., a Delaware corporation (the "Company,"
which term includes any successor entity), for value received promises to pay to
____________ or registered assigns, the principal sum of _________ Dollars, on
September 15, 2004.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
----------
(1) To be included and completed upon a public sale.
A-2
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: September 25, 1992
XXXXX XXXXX HOLDING CORP.
By: __________________________________
Name:
Title:
This is one of the Securities described in the within-mentioned
Indenture.
THE CONNECTICUT NATIONAL BANK
as Trustee
By__________________________________
Authorized Signatory
A-3
XXXXX XXXXX HOLDING CORP.
15% Senior Subordinated Zero Coupon Note
due September 15, 2004, Series A
1. Interest.
XXXXX XXXXX HOLDING CORP., a Delaware corporation (the "Company"),
promises to pay cash interest on the principal amount of this Security from the
Final Accretion Date until maturity at the rate per annum shown above. The
Company will pay cash interest semi-annually in arrears on March 15 and
September 15 of each year (the "Interest Payment Date"), commencing March 15,
2000. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at a rate equal to 17%
per annum.
2. Method of Payment.
Commencing on the Issue Date, accretion of the purchase discount
will occur on each Semiannual Accretion Date in respect of the preceding
semiannual period, through and including the Final Accretion Date, in an amount
equal to the Accretion Amount for such period. Payment of the principal of this
Security or such lesser or greater amount payable upon the acceleration of the
maturity of the Securities will include accretion of the purchase discount to
the date of such payment. Commencing on the Final Accretion Date, the Company
shall pay interest on the Securities (except defaulted interest) to the persons
who are the registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the Securities are
cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay principal
and interest by wire transfer of Federal funds, or interest by its check payable
in such U.S. Legal Tender. The Company may deliver any such interest payment to
the Paying Agent or to a Holder at the Holder's registered address.
Notwithstanding the foregoing, the Company shall pay or cause to be paid all
amounts payable with respect to Restricted Securities or non-
A-4
DTC eligible Securities by wire transfer of Federal funds to the account of the
Holders of such Securities. If this Security is a Global Security, all payments
in respect of this Security will be made to the Depository or its nominee in
immediately available funds in accordance with customary procedures established
from time to time by the Depository. If this Security is a Global Security and a
Restricted Security, only Qualified Institutional Buyers (as defined in Rule
144A under the Securities Act) may hold a beneficial interest herein.
"Final Accretion Date" means September 15, 1999.
"Semiannual Accretion Date" means each March 15 and September 15 in
each year commencing on the Issue Date and ending on the Final Accretion Date.
"Accretion Amount" means that portion of the purchase discount
(which shall be deemed to be the excess of the face amount over the Payment
Amount) which has been accreted from the preceding Semiannual Accretion Date
calculated by applying an accretion rate of 15% per annum to such Payment Amount
using semiannual compounding on March 15 and September 15 of each year from the
first Semiannual Accretion Date to the Final Accretion Date.
"Payment Amount" means an amount equal to $364.73 per S1,000 of face
amount of a Security.
3. Paying Agent and Registrar.
Initially, The Connecticut National Bank (the "Trustee"), will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
September 15, 1992 (the "Indenture"), between the Company and the Trustee. This
Security is one of a duly authorized issue of Securities of the Company
designated as its 15% Senior Subordinated Zero Coupon Notes Due 2004, Series A
(the "Series A Securities"), limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $123,380,000, which may be issued
under the Indenture. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of
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the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss.77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until
such time as the Indenture is qualified under the TIA, and thereafter as in
effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and said
Act for a statement of them. The Securities are general unsecured obligations of
the Company limited in aggregate principal amount to $123,380,000, except as
otherwise provided in the Indenture.
5. Registration Rights.
Pursuant to the Registration Rights Agreement between the Company
and the Holders of the Series A Securities, the Company will be obligated to
consummate an exchange offer pursuant to which the Holder of this Security shall
have the right to exchange this Security for 15% Senior Subordinated Zero Coupon
Notes Due 2004, Series B, of the Company (the "Series B Securities"), which have
been registered under the Securities Act, in like principal amount and having
identical terms as the Series A Securities. The Holders of Series A Securities
shall be entitled to receive certain additional interest payments in the event
such exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement. The Series A Securities and the Series B Securities are together
referred to herein as the "Securities."
6. Subordination.
The Indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (including,
without limitation, interest on such Senior Indebtedness that would accrue but
for the filing of a petition initiating any proceeding under any Bankruptcy Law,
whether or not such claim is allowable in such proceeding) as defined in the
Indenture, and this Security is issued subject to such provisions. Each Holder
of this Security, 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.
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7. Optional Redemption.
The Securities may not be redeemed at the option of the Company
prior to September 15, 1997. Thereafter, the Company may redeem all or any of
the Securities at any time at redemption prices (expressed in percentages of the
Accreted Value or principal amount, as the case may be), set forth below plus
accrued interest, if any, to the Redemption Date if redeemed during the 12-month
period beginning on September 15 in the years indicated below:
Year Percentage
---- ----------
1997 .................................... 107.5%
1998 .................................... 106.0%
1999 .................................... 104.5%
2000 .................................... 103.0%
2001 .................................... 101.5%
2002 and thereafter ..................... 100.0%
Notwithstanding the foregoing, prior to September 15, 1997, the
Company may use the net proceeds of an Initial Public Offering (as defined in
the Indenture) to redeem all or any portion of the Securities at a redemption
price equal to the sum of (i) the then outstanding Accreted Value thereof plus
(ii) accrued and unpaid interest, if any, to the Redemption Date plus (iii) the
Applicable Premium (as defined in the Indenture). In order to effect the
foregoing redemption, the Company shall send the notice required by Section 3.03
of the Indenture not later than 30 days after the Initial Public Offering
Consummation Date (as defined in the Indenture).
8. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such Redemption Price,
the Securities called for redemption will cease to bear interest and purchase
discount will cease to accrue and the only right of the Holders of such
Securities will be to receive payment of the Redemption Price.
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9. Change of Control Offer.
In the event of a Change of Control, upon the satisfaction of the
conditions set forth in the Indenture, the Company shall be required to offer to
purchase all of the then outstanding Securities pursuant to a Change of Control
Offer at a purchase price equal to 101% of the Accreted Value or principal
amount, as the case may be, thereof plus accrued interest, if any, to the date
of purchase. Holders of Securities which are the subject of such an offer to
repurchase shall receive an offer to repurchase and may elect to have such
Securities repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
10. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply the net
proceeds from Asset Sales to repurchase Securities at a price equal to 102% of
the aggregate Accreted Value or principal amount, as the case may be, thereof,
plus accrued interest to the date of purchase.
11. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption.
If this Series A Security is a Restricted Security in certificated
form, then as provided in the Indenture and subject to certain limitations
therein set forth, the Holder, provided it is a Qualified Institutional Buyer,
may exchange this Series A Security for a Book-Entry Security by instructing the
Trustee (by completing the Transferee Certificate attached to this Security) to
arrange for such Series A Security to be represented by a beneficial interest in
a Global Security in accordance with the customary procedures of the Depository.
In addition, the Company may at any time determine not to have Series A
Securities represented in certificated form, in which event the Holder of a
Series A Security in certificated form may be required to exchange this Series A
Security for a Book-Entry Security.
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If this Series A Security is a Global Security, it is exchangeable
for Series A Securities in certificated form only if (x) the Depository is at
any time unwilling or unable to continue as depository and a successor
depository is not appointed by the Company within 30 days or (y) there shall
have occurred and be continuing an Event of Default or (z) the Company may at
any time determine not to have Series A Securities represented by a Global
Security. In addition, in accordance with the provisions of the Indenture and
subject to certain limitations therein set forth, an owner of a beneficial
interest in a Global Security may request a Series A Security in certificated
form, in exchange in whole or in part, as the case may be, for such beneficial
owner's interest in the Global Security. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
in certificated form of Series A Securities in authorized denominations equal in
principal amount to such beneficial interest and to have such Series A
Securities registered in its name.
12. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
With respect to Global Securities, the Depository may grant proxies
and otherwise authorize Holders of Book-Entry Securities to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder of a Security is entitled to give or take under this
Indenture.
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for one year, the Trustee and the Paying Agents will pay the money back to the
Company at its request. After that, all liability of the Trustee and such Paying
Agents with respect to such money shall cease.
14. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations sufficient to pay the principal of and
interest on the Securities to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Securities (including the
financial covenants, but excluding its obligation to pay the principal of and
interest on the Securities).
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15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate Accreted Value or principal amount, as the case may be, of
the Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate Accreted Value or principal amount, as the case may be, of
the Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities,
comply with Article Five of the Indenture or comply with any requirements of the
SEC in connection with the qualification of the Indenture under the TIA, or make
any other change that does not adversely affect the rights of any Holder of a
Security.
16. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose of substantially all of certain of its properties or assets. The
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
17. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
18. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate Accreted Value or principal amount, as the
case may be, of Securities then outstanding may declare all the Securities to be
due and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Securities unless it has received indemnity satisfactory to it.
The Indenture permits, subject to certain limitations
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therein provided, Holders of a majority in aggregate Accreted Value or principal
amount, as the case may be, of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in their interest.
19. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
20. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
21. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on this Security.
22. Governing Law.
The Laws of the State of New York shall govern this Security and the
Indenture.
23. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security 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).
24. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the
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Company will cause CUSIP numbers to be printed on the Securities immediately
prior to the qualification of the Indenture under the TIA as a convenience to
the Holders of the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on the
other identification numbers printed hereon.
25. Indenture.
Each Holder, by accepting a Security, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
XXXXX XXXXX HOLDING CORP., x/x Xxxx Xxxxxxx, Xxx Xxxxxx Xxxxx, Xxxxxx, XX 00000,
Attn: Xxxx Xxxxxx.
26. Certain Information Obligations.
At any time when the Company is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, the Company shall furnish the Trustee
and the Holders and, under certain circumstances, prospective purchasers with
the information that the Company would have had to provide to the SEC if the
Company had been subject to Section 13 or 15(d) of the Securities Exchange Act
of 1934. Also, at any time when the Company is not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, upon the request of a Holder of a
Series A Security, the Company will promptly furnish or cause to be furnished
such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto) to such Holder or to a
prospective purchaser of such Series A Security, as the case may be, in order to
permit compliance by such Holder with Rule 144A under the Securities Act.
27. Holding Company Indebtedness.
Each Holder acknowledges that the Company is the sole obligor of the
Securities and no Subsidiary of the Company is a co-obligor or a guarantor of
the Securities.
[The Transferee Certificate (Exhibit D to the Indenture) will be
attached to the Series A Note.]
A-12
[FORM OF ASSIGNMENT]
I or we assign this Security to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
_______________________________________________
and irrevocably appoint ____________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated: _____________________ Signed: ___________________________________________
________________________________________________________________________________
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee: ___________________________________________________________
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount:
$
Date: __________ Signature: __________________________________________
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee: ___________________________________________________________
A-14
EXHIBIT B
[FORM OF NOTE]
THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES,
DETERMINED PURSUANT TO SECTIONS 1272 THROUGH 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND THE PROPOSED TREASURY REGULATIONS PROMULGATED
THEREUNDER, IN THE AMOUNT OF $____________ PER $1,000 FACE AMOUNT OF THIS
SECURITY. THE SECURITY WAS ISSUED ON SEPTEMBER 25, 1992, AND HAS A YIELD TO
MATURITY (INCLUSIVE OF CASH INTEREST) OF ____________% BASED ON SEMIANNUAL
COMPOUNDING. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ALLOCABLE TO THE SHORT
INITIAL ACCRUAL PERIOD IS $____________ PER $1,000 FACE AMOUNT DETERMINED ON THE
BASIS OF THE [APPROXIMATE] METHOD.
XXXXX XXXXX HOLDING CORP.
15% Senior Subordinated Zero Coupon Note
due September 15, 2004, Series B
No. $
XXXXX XXXXX HOLDING CORP., a Delaware corporation (the "Company,"
which term includes any successor entity), for value received promises to pay to
_________________ or registered assigns, the principal sum of ________ Dollars,
on September 15, 2004.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: September 25, 1992
XXXXX XXXXX HOLDING CORP.
By: ________________________________
Name:
Title:
This is one of the Securities described in the within-mentioned
Indenture.
THE CONNECTICUT NATIONAL BANK
as Trustee
By_____________________________________
Authorized Signatory
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XXXXX XXXXX HOLDING CORP.
15% Senior Subordinated Zero Coupon Note
due September 15, 2004, Series B
1. Interest.
XXXXX XXXXX HOLDING CORP., a Delaware corporation (the "Company"),
promises to pay cash interest on the principal amount of this Security from the
Final Accretion Date until maturity at the rate per annum shown above. The
Company will pay cash interest semi-annually in arrears on March 15 and
September 15 of each year (the "Interest Payment Date"), commencing March 15,
2000. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at a rate equal to 17%
per annum.
2. Method of Payment.
Commencing on the Issue Date, accretion of the purchase discount
will occur on each Semiannual Accretion Date in respect of the preceding
semiannual period, through and including the Final Accretion Date, in an amount
equal to the Accretion Amount for such period. Payment of the principal of this
Security or such lesser or greater amount payable upon the acceleration of the
maturity of the Securities will include accretion of the purchase discount to
the date of such payment. Commencing on the Final Accretion Date, the Company
shall pay interest on the Securities (except defaulted interest) to the persons
who are the registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the Securities are
cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay principal
and interest by wire transfer of Federal funds, or interest by its check payable
in such U.S. Legal Tender. The Company may deliver any such interest payment to
the Paying Agent or to a Holder at the Holder's registered address.
Notwithstanding the foregoing, the Company shall pay or cause to be paid all
amounts payable with respect to Restricted Securities or
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non-DTC eligible Securities by wire transfer of Federal funds to the account of
the Holders of such Securities. If this Security is a Global Security, all
payments in respect of this Security will be made to the Depository or its
nominee in immediately available funds in accordance with customary procedures
established from time to time by the Depository.
"Final Accretion Date" means September 15, 1999.
"Semiannual Accretion Date" means each March 15 and September 15 in
each year commencing on the Issue Date and ending on the Final Accretion Date.
"Accretion Amount" means that portion of the purchase discount
(which shall be deemed to be the excess of the face amount over the Payment
Amount) which has been accreted from the preceding Semiannual Accretion Date
calculated by applying an accretion rate of 15% per annum to such Payment Amount
using semiannual compounding on March 15 and September 15 of each year from the
first Semiannual Accretion Date to the Final Accretion Date.
"Payment Amount" means an amount equal to $364.73 per $1,000 of face
amount of a Security.
3. Paying Agent and Registrar.
Initially, The Connecticut National Bank (the "Trustee"), will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
September 15, 1992 (the "Indenture"), between the Company and the Trustee. This
Security is one of a duly authorized issue of Securities of the Company
designated as its 15% Senior Subordinated Zero Coupon Notes Due 2004, Series B
(the "Series B Securities"), limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $123,380,000, which may be issued
under the Indenture. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is
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qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and said Act for a statement of them. The
Securities are general unsecured obligations of the Company limited in aggregate
principal amount to $123,380,000, except as otherwise provided in the Indenture.
5. Exchange Offer.
The Series B Securities were issued pursuant to an exchange offer
pursuant to which 15% Senior Subordinated Zero Coupon Notes Due 2004, Series A,
of the Company (the "Series A Securities"), in like principal amount and having
substantially identical terms as the Series B Securities, were exchanged for the
Series B Securities. The Series A Securities and the Series B Securities are
together referred to herein as the "Securities."
6. Subordination.
The Indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (including,
without limitation, interest on such Senior Indebtedness that would accrue but
for the filing of a petition initiating any proceeding under any Bankruptcy Law,
whether or not such claim is allowable in such proceeding) as defined in the
Indenture, and this Security is issued subject to such provisions. Each Holder
of this Security, 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.
7. Optional Redemption.
The Securities may not be redeemed at the option of the Company
prior to September 15, 1997. Thereafter, the Company may redeem all or any of
the Securities at any time at redemption prices (expressed in percentages of the
Accreted Value or principal amount, as the case may be), set forth below plus
accrued interest, if any, to the Redemption Date if redeemed during the 12-month
period beginning on September 15 in the years indicated below:
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Year Percentage
---- ----------
1997 .................................... 107.5%
1998 .................................... 106.0%
1999 .................................... 104.5%
2000 .................................... 103.0%
2001 .................................... 101.5%
2002 and thereafter ..................... 100.0%
Notwithstanding the foregoing, prior to September 15, 1997, the
Company may use the net proceeds of an Initial Public Offering (as defined in
the Indenture) to redeem all or any portion of the Securities at a redemption
price equal to the sum of (i) the then outstanding Accreted Value thereof plus
(ii) accrued and unpaid interest, if any, to the Redemption Date plus (iii) the
Applicable Premium (as defined in the Indenture). In order to effect the
foregoing redemption, the Company shall send the notice required by Section 3.03
of the Indenture not later than 30 days after the Initial Public Offering
Consummation Date (as defined in the Indenture).
8. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such Redemption Price,
the Securities called for redemption will cease to bear interest and purchase
discount will cease to accrue and the only right of the Holders of such
Securities will be to receive payment of the Redemption Price.
9. Change of Control Offer.
In the event of a Change of Control, upon the satisfaction of the
conditions set forth in the Indenture, the Company shall be required to offer to
purchase all of the then outstanding Securities pursuant to a Change of Control
Offer at a purchase price equal to 101% of the Accreted Value or principal
amount, as the case may be, thereof plus accrued interest, if any, to the date
of purchase. Holders of Securities which are the subject of such an offer to
repurchase shall receive an offer to repurchase and may elect to have such
Securities
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repurchased in accordance with the provisions of the Indenture pursuant to and
in accordance with the terms of the Indenture.
10. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply the net
proceeds from Asset Sales to repurchase Securities at a price equal to 102% of
the aggregate Accreted Value or principal amount, as the case may be, thereof,
plus accrued interest to the date of purchase.
11. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption. The Company
may at any time determine not to have Series B Securities represented in
certificated form, in which event the Holder of a Series B Security in
certificated form may be required to exchange this Series B Security for a
Book-Entry Security.
If this Series B Security is a Global Security, it is exchangeable
for Series B Securities in certificated form only if (x) the Depository is at
any time unwilling or unable to continue as depository and a successor
depository is not appointed by the Company within 30 days or (y) there shall
have occurred and be continuing an Event of Default or (z) the Company may at
any time determine not to have Series B Securities represented by a Global
Security. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery in certificated form of Series B
Securities in authorized denominations equal in principal amount to such
beneficial interest and to have such Series B Securities registered in its name.
12. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
With respect to Global Securities, the Depository may grant proxies
and otherwise authorize Holders of Book-Entry Securities to give or take any
request, demand, authorization,
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direction, notice, consent, waiver or other action which a Holder of a Security
is entitled to give or take under this Indenture.
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for one year, the Trustee and the Paying Agents will pay the money back to the
Company at its request. After that, all liability of the Trustee and such Paying
Agents with respect to such money shall cease.
14. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations sufficient to pay the principal of and
interest on the Securities to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Securities (including the
financial covenants, but excluding its obligation to pay the principal of and
interest on the Securities).
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate Accreted Value or principal amount, as the case may be, of
the Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate Accreted Value or principal amount, as the case may be, of
the Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities,
comply with Article Five of the Indenture or comply with any requirements of the
SEC in connection with the qualification of the Indenture under the TIA, or make
any other change that does not adversely affect the rights of any Holder of a
Security.
16. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose
B-8
of substantially all of certain of its properties or assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
17. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
18. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate Accreted Value or principal amount, as the
case may be, of Securities then outstanding may declare all the Securities to be
due and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Securities unless it has received indemnity satisfactory to it.
The Indenture permits, subject to certain limitations therein provided, Holders
of a majority in aggregate Accreted Value or principal amount, as the case may
be, of the Securities then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Securities notice
of any continuing Default or Event of Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
19. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
20. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
B-9
21. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on this Security.
22. Governing Law.
The Laws of the State of New York shall govern this Security and the
Indenture.
23. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security 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).
24. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
25. Indenture.
Each Holder, by accepting a Security, agreed to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
XXXXX XXXXX HOLDING CORP., x/x Xxxx Xxxxxxx, Xxx Xxxxxx Xxxxx, Xxxxxx, XX 00000,
Attn: Xxxx Xxxxxx.
26. Holding Company Indebtedness.
Each Holder acknowledges that the Company is the sole obligor of the
Securities and no Subsidiary of the Company is a co-obligor or a guarantor of
the Securities.
B-10
[FORM OF ASSIGNMENT]
I or we assign this Security to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
_______________________________________________
and irrevocably appoint ____________________agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated: _____________________ Signed: ___________________________________________
________________________________________________________________________________
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee: ___________________________________________________________
B-11
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount:
$
Date: __________ Signature: __________________________________________
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee: ___________________________________________________________
B-12
EXHIBIT C
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
FORM OF TRANSFEREE CERTIFICATE
[Letterhead of Prospective Purchaser or
U.S. Registered Broker-Dealer]
Xxxxx Xxxxx Holding Corp. Date: ________________
x/x Xxxx Xxxxxxx
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Dear Sirs:
I. We hereby request that $ _________ aggregate principal amount of
15% Senior Subordinated Zero Coupon Notes Due 2004, Series A (the "Notes"), of
Xxxxx Xxxxx Holding Corp., a Delaware corporation ("Xxxxx Xxxxx Holdings"), be
registered in the name set forth below and confirm that either:
[Check One]
[ ] (a) each person in whose name the Notes are to be registered
upon transfer (or, in the case of a transfer to a nominee, each beneficial owner
of such Note) has been advised that such Note has been sold or transferred to it
in reliance upon Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and the address of the person in whose name the Notes are to
be registered upon transfer is an address outside the United States (as defined
in Regulation S) and such person is not a U.S. Person (as defined in Regulation
S).
[ ] (b) the new beneficial owner is an institutional "accredited
investor" (as defined in Rule 501(a)(l), (2), (3) or (7) of Regulation D under
the Securities Act) that is acquiring the notes for investment purposes and not
for distribution (within the meaning of the Securities Act); it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its
D-1
investment in the Notes, and it and any accounts for which it is acting are each
able to bear the economic risk of its investment; it is acquiring the Notes
purchased by it for its own account or for one or more accounts as to each of
which it exercises sole investment discretion.
If this letter is being filled out by a prospective purchaser, the
undersigned purchaser confirms that the Notes will only be transferred in
accordance with the legend on the Notes, and further, that it understands that
in connection with any such transfer, Xxxxx Xxxxx Holdings and the Trustee may
request, and if so requested the undersigned purchaser will furnish, such
certificates and other information as may reasonably be required to confirm that
any such transfer complies with the restrictions set forth therein.
We also confirm that we will only transfer the Notes in accordance
with the legend on the Notes.
II. For Qualified Institutional Buyers:
[ ] The Notes are being transferred to a "Qualified Institutional
Buyer" (as defined in Rule 144A under the Securities Act), which person has been
advised that the Notes have been sold or transferred to it in reliance upon Rule
144A, and the transferee wishes the Trustee to arrange for the transferred Notes
to be represented by a beneficial interest in a global security and held in
book-entry form in accordance with the customary procedures of The Depository
Trust Company.
III. The Notes should be registered as follows (unless the box under
II above is checked):
Name:
Address:
Tax Identification Number:
Physical Location of Notes (including address):
Address:
Contact:
D-2
IV. If this letter is being completed by a U.S. registered
broker-dealer on behalf of the transferee, the undersigned broker-dealer
confirms that (a) it has delivered to the transferee a notice regarding the
restrictions on transfer of the Notes by such transferee as set forth in the
legend on the Notes and (b) to the best of its knowledge, the information
provided herein about the transferee is true and correct.
You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Prospective Purchaser
or U.S. Registered Broker-
Dealer]
By: ___________________________
Title:
D-3
Exhibit E
Accreted Value Per $1,000 Face
Amount
Date Accreted Value
---- --------------
Sept. 15, 1992 $363.31
March 15, 1993 390.56
Sept. 15, 1993 419.85
March 15, 1994 451.34
Sept. 15, 1994 485.19
March 15, 1995 521.58
Sept. 15, 1995 560.70
March 15, 1996 602.75
Sept. 15, 1996 647.96
March 15, 1997 696.56
--------------------------------------------------------
Sept. 15, 1997 748.80
March 15, 1998 804.96
Sept. 15, 1998 865.33
March 15, 1999 930.23
Sept. 15, 1999 and thereafter 1,000.00
E-1
