Execution Copy
Mail-Well I Corporation
8 3/4% Senior Subordinated Notes Due 2008
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INDENTURE
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Dated as of December 16, 1998
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State Street Bank and Trust Company
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Trustee
CROSS-REFERENCE TABLE
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 13.03
(c) 13.03
313 (a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 13.02
(d) 7.6
314 (a) 4.03; 4.19; 13.02
(b) N.A.
(c)(1) 13.04
(c)(2) 13.04
(c)(3) N.A.
(d) N.A.
(e) 13.05
(f) N.A.
315 (a) 7.01
(b) 7.05, 13.02
(c) 7.01
(d) 7.01; 6.05
(e) 6.11
316 (a) (last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.12
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) 13.01
(b) N.A.
(c) 13.01
_____________________
N.A. means not applicable.
This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01. Definitions 1
Section 1.02. Other Definitions 17
Section 1.03. Incorporation by Reference of Trust Indenture Act 17
Section 1.04. Rules of Construction 18
ARTICLE 2 THE NOTES 18
Section 2.01. Form and Dating 18
Section 2.02. Execution and Authentication 19
Section 2.03. Registrar and Paying Agent 20
Section 2.04. Paying Agent to Hold Money in Trust 20
Section 2.05. Holder Lists 20
Section 2.06. Transfer and Exchange 21
Section 2.07. Replacement Notes 34
Section 2.08. Outstanding Notes 34
Section 2.09. Treasury Notes 35
Section 2.10. Temporary Notes 35
Section 2.11. Cancellation 35
Section 2.12. Defaulted Interest 35
Section 2.13. CUSIP Numbers 36
ARTICLE 3 REDEMPTION AND PREPAYMENT 36
Section 3.01. Notices to Trustee 36
Section 3.02. Selection of Notes to be Redeemed 36
Section 3.03. Notice of Redemption 36
Section 3.04. Effect of Notice of Redemption 37
Section 3.05. Deposit of Redemption Price 37
Section 3.06. Notes Redeemed in Part 38
Section 3.07. Optional Redemption 38
Section 3.08. Mandatory Redemption 39
Section 3.09. Offer to Purchase by Application of Net Proceeds 39
ARTICLE 4 COVENANTS 40
Section 4.01. Payment of Notes 40
Section 4.02. Maintenance of Office or Agency 41
Section 4.03. Compliance Certificate 41
Section 4.04. Taxes 42
Section 4.05. Stay, Extension and Usury Laws 42
Section 4.06. Change of Control 42
Section 4.07. Asset Sales 43
Section 4.08. Restricted Payments 44
i
Section 4.09. Incurrence of Indebtedness 46
Section 4.10. Anti-Layering 48
Section 4.11. Liens 48
Section 4.12. Dividend and Other Payment Restrictions Affecting
Subsidiaries 49
Section 4.13. Transactions with Affiliates 49
Section 4.14. Additional Subsidiary Guarantees 50
Section 4.15. Limitations on Issuances of Guarantees of Indebtedness 50
Section 4.16. Business Activities 50
Section 4.17. Advances to Subsidiaries 50
Section 4.18. Payments for Consent 50
Section 4.19. Reports 51
ARTICLE 5 SUCCESSORS 52
Section 5.01. Merger, Consolidation, or Sale of Assets 52
Section 5.02. Successor Corporation Substituted 53
ARTICLE 6 DEFAULTS AND REMEDIES 53
Section 6.01. Events of Default 53
Section 6.02. Acceleration 55
Section 6.03. Other Remedies 55
Section 6.04. Waiver of Past Defaults 56
Section 6.05. Control by Majority 56
Section 6.06. Limitation on Suits 56
Section 6.07. Rights of Holders of Notes to Receive Payment 57
Section 6.08. Collection Suit by Trustee 57
Section 6.09. Trustee May File Proofs of Claim 57
Section 6.10. Priorities 58
Section 6.11. Undertaking for Costs 58
ARTICLE 7 TRUSTEE 58
Section 7.01. Duties of Trustee 58
Section 7.02. Rights of Trustee 59
Section 7.03. Individual Rights of Trustee 60
Section 7.04. Trustee's Disclaimer 60
Section 7.05. Notice of Defaults 60
Section 7.06. Reports by Trustee to Holders of the Notes 61
Section 7.07. Compensation and Indemnity 61
Section 7.08. Replacement of Trustee 62
Section 7.09. Successor Trustee by Xxxxxx, Etc 63
Section 7.10. Eligibility; Disqualification 63
Section 7.11. Preferential Collection of Claims Against Company 63
ii
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 63
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance 63
Section 8.02. Legal Defeasance and Discharge 63
Section 8.03. Covenant Defeasance 64
Section 8.04. Conditions to Legal or Covenant Defeasance 64
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions 65
Section 8.06. Repayment to Company 66
Section 8.07. Reinstatement 66
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER 67
Section 9.01. Without Consent of Holders of Notes 67
Section 9.02. With Consent of Holders of Notes 67
Section 9.03. Compliance with Trust Indenture Act 69
Section 9.04. Revocation and Effect of Consents 69
Section 9.05. Notation on or Exchange of Notes 69
Section 9.06. Trustee to Sign Amendments, Etc 69
ARTICLE 10 SUBORDINATION 70
Section 10.01. Agreement to Subordinate 70
Section 10.02. [Intentionally Omitted] 70
Section 10.03. Liquidation; Dissolution; Bankruptcy 70
Section 10.04. Default on Designated Senior Debt 70
Section 10.05. Acceleration of Notes 71
Section 10.06. When Distribution Must be Paid Over 71
Section 10.07. Notice by Company 72
Section 10.08. Subrogation 72
Section 10.09. Relative Rights 72
Section 10.10. Subordination May Not be Impaired by Company 72
Section 10.11. Distribution or Notice to Representative 73
Section 10.12. Rights of Trustee and Paying Agent 73
Section 10.13. Authorization to Effect Subordination 73
Section 10.14. Amendments 73
ARTICLE 11 GUARANTEES 74
Section 11.01. Note Guarantees 74
Section 11.02. Limitation of Guarantor's Liability 75
Section 11.03. Execution and Delivery of Note Guarantees 75
Section 11.04. Guarantors May Consolidate, Etc., on Certain Terms 75
Section 11.05. Releases Following Sale of Assets 76
Section 11.06. Trustee to Include Paying Agent 77
Section 11.07. Subordination of Note Guarantees 77
iii
ARTICLE 12 SATISFACTION AND DISCHARGE 77
Section 12.01. Satisfaction and Discharge 77
Section 12.02. Application of Trust 78
ARTICLE 13 MISCELLANEOUS 79
Section 13.01. Trust Indenture Act Controls 79
Section 13.02. Notices 79
Section 13.03. Communication by Holders of Notes with Other Holders
of Notes 80
Section 13.04. Certificate and Opinion as to Conditions Precedent 80
Section 13.05. Statements Required in Certificate or Opinion 80
Section 13.06. Rules by Trustee and Agents 81
Section 13.07. No Personal Liability of Directors, Officers, Employees
and Stockholders 81
Section 13.08. Governing Law 81
Section 13.09. No Adverse Interpretation of Other Agreements 81
Section 13.10. Successors 81
Section 13.11. Severability 81
Section 13.12. Counterpart Originals 82
Section 13.13. Table of Contents, Headings, Etc 82
EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF SUBSIDIARY GUARANTEE
Exhibit E FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Exhibit F FORM OF INTERCOMPANY NOTE
iv
INDENTURE dated as of December 16, 1998 among Mail-Well I
Corporation, a Delaware corporation (the "Company"), the Guarantors (as
defined herein) listed on Schedule A hereto, and State Street Bank and
Trust Company, a Massachusetts trust company, as trustee (the
"Trustee").
The Company, the Guarantors, and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the
Holders of the 8 3/4% Series A Senior Subordinated Notes due 2008 (the
"Series A Notes") and the 8 3/4% Series B Senior Subordinated Notes due
2008 (the "Exchange Notes" and, together with the Series A Notes, the
"Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means the Global Note in the form of Exhibit
A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person: (i)
Indebtedness of any other Person existing at the time such other Person
is merged with or into or became a Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and (ii) Indebtedness secured by a
Lien encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of
this definition, control, as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting Stock of
a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common
control with" shall have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary, Euroclear and Cedel Bank that apply to
such transfer or exchange.
"Asset Sale" means, (i) the sale, lease, conveyance or other
disposition of any assets or rights, including sales and leasebacks, but
excluding sales of inventory in the ordinary course of business
consistent with past practices; provided that the sale, lease,
conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole
will be governed by the provisions of Section 4.06 and/or the provisions
of Article 5 hereof and not by the provisions of Section 4.07; and (ii)
the issuance of Equity Interests by any of the Company's Restricted
Subsidiaries or the sale by the Company or any of its Restricted
Subsidiaries of Equity Interests in any of its Subsidiaries.
Notwithstanding
the preceding, the following items shall not be deemed to be Asset
Sales: (i) any single transaction or series of related transactions
that: (a) involves assets having a fair market value of less than $5
million; or (b) results in net proceeds to the Company and its
Restricted Subsidiaries of less than $5 million; (ii) a transfer of
assets between or among the Company and its Wholly Owned Restricted
Subsidiaries; (iii) an issuance of Equity Interests by a Wholly Owned
Restricted Subsidiary to the Company or to another Wholly Owned
Restricted Subsidiary; and (iv) a Restricted Payment that is permitted
under Section 4.08 hereof.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation
of the lessee for net rental payments during the remaining term of the
lease included in such sale and leaseback transaction including any
period for which such lease has been extended or may, at the option of
the lessor, be extended. Such present value shall be calculated using a
discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule l3d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular "person" (as such term is
used in Section 13(d)(iii) of the Exchange Act), such "person" shall be
deemed to have beneficial ownership of all securities that such "person"
has the right to acquire, whether such right is currently exercisable or
is exercisable only upon the occurrence of a subsequent condition.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company,
or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a
balance sheet in accordance with GAAP.
"Capital Stock" means, (i) in the case of a corporation,
corporate stock; (ii) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (iii) in the case
of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and (iv) any other interest or
participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the
full faith and credit of the United States government or any agency or
instrumentality thereof having maturities of not more than one year from
the date of acquisition, (iii) demand or time deposits, certificates of
deposit and eurodollar time deposits with maturities of one year or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any
lender party to the Existing Credit Facility or with any domestic
commercial bank having capital and surplus in excess of $500 million and
a Xxxxx Bank Watch Rating of "B" or better, (iv) repurchase obligations
with a term of not more than seven days for underlying securities of the
types
2
described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation
and in each case maturing within one year after the date of acquisition,
and (vi) investments in money market or other mutual funds at least 95%
of whose assets comprise securities described in clauses (ii) through
(v) above.
"Cedel Bank" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following:
(i) the sale, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Subsidiaries taken as a whole to any "person" (as such term is
used in Section 13(d)(iii) of the Exchange Act) other than a Principal
or a Related Party of a Principal; (ii) the adoption of a plan relating
to the liquidation or dissolution of the Company; (iii) the consummation
of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as defined
above), other than the Principals and their Related Parties, becomes the
Beneficial Owner, directly or indirectly, of more than 35% of the Voting
Stock of the Company or the Parent Company, measured by voting power
rather than number of shares; (iv) the first day on which a majority of
the members of the Board of Directors of the Company or the Parent
Company are not Continuing Directors; or (v) the Company or the Parent
Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, the Company or the
Parent Company, in any such event pursuant to a transaction in which any
of the outstanding Voting Stock of the Company or the Parent Company is
converted into or exchanged for cash, securities or other property,
other than any such transaction where the Voting Stock of the Company or
the Parent Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock of the surviving or
transferee Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person immediately
after giving effect to such issuance.
"Company" means Mail-Well I Corporation, a Delaware corporation,
and any and all successors thereto.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus:
(i) an amount equal to any extraordinary loss plus any net loss realized
in connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income; plus (ii) provision
for taxes based on income or profits of such Person and its Subsidiaries
for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income; plus (iii)
consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, imputed interest
with aspect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments, if any, pursuant to Hedging
Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income; plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles)
and other non-cash expenses of such Person and its Subsidiaries for such
period to the extent that such depreciation, amortization and other non-
cash expenses were deducted in computing such Consolidated Net Income;
minus (v) non-cash items increasing such Consolidated Net Income for
such period, other than items
3
that were accrued in the ordinary course of business, in each case, on a
consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on
the income or profits of, and the depreciation and amortization and
other non-cash charges of a Subsidiary of the Company shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Company
only to the extent that a corresponding amount would be permitted at the
date of determination to be dividended to the Company by such Subsidiary
without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable
to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided that: (i) the Net
Income (but not loss) of any Person that is not a Restricted Subsidiary
or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions
paid in cash to the specified Person or a Wholly Owned Subsidiary
thereof; (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders;
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall
be excluded; (iv) the Net Income (but not loss) of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the
specified Person or one of its Subsidiaries; and (v) the cumulative
effect of a change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of
any date, the sum of: (i) the consolidated equity of the common
stockholders of such Person and its consolidated Subsidiaries as of such
date; plus (ii) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of preferred stock that
by its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect
of the year of such declaration and payment, but only to the extent of
any cash received by such Person upon issuance of such preferred stock.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company or the Parent Company
who: (i) was a member of such Board of Directors on the Issue Date; or
(ii) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of the Board of Directors of the Parent Company at the time of
such nomination or election.
"Convertible Notes" means the 5% Convertible Subordinated Notes
due 2002 of Mail-Well, Inc. outstanding as of the date of this
Indenture.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 hereof or such other address as
to which the Trustee may give notice to the Company.
4
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt facilities or commercial paper
facilities, in each case with banks or other institutional lenders
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in part
from time to time.
"Default" means any event that is or with the passage of time or
the giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof,
in the form of Exhibit A-1 hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.
"Designated Senior Debt" means, (i) all Senior Debt under the
Credit Facilities; and (ii) any Senior Debt permitted under this
Indenture the principal amount of which is $50 million or more and that
has been designated by the Company as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon
the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the
option of the Holder thereof, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes mature; provided,
however, that a class of Capital Stock shall not be Disqualified Stock
hereunder solely as the result of any maturity or redemption that is
conditioned upon, and subject to, compliance with Section 4.08 hereof.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any private or underwritten public
offering of common stock of the Company or the Parent Company in which
the gross proceeds to the Company or the Parent Company, as applicable,
are at least $50 million and, in the case of an offering by the Parent
Company, the net proceeds are contributed to the Company.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means those notes, having terms substantially
identical to the Notes, offered to the Holders of the Notes under the
Exchange Offer Registration Statement.
5
"Exchange Offer" means the offer made to the Holders of the Notes
to exchange their Notes for the Exchange Notes.
"Exchange Offer Registration Statement" means that certain
registration statement filed by the Company with the Commission to
register the Exchange Offer.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries in existence on the Issue Date.
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of: (i) the consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued, including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions,
discounts, and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net payments, if any,
pursuant to Hedging Obligations; plus (ii) the consolidated interest
expense of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus (iii) any interest expense on
Indebtedness of another Person that is Guaranteed by such Person or one
of its Restricted Subsidiaries or secured by a Lien on assets of such
Person or one of its Restricted Subsidiaries, whether or not such
Guarantee or Lien is called upon; plus (iv) all cash dividend payments
on any series of preferred stock of such Person or any of its Restricted
Subsidiaries.
"Fixed Charge Coverage Ratio" means, with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such
Person and its Restricted Subsidiaries for such period to the Fixed
Charges of such Person for such period. In the event that the specified
Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees
or redeems any Indebtedness (other than revolving credit borrowings) or
issues or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but
prior to the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the
Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness,
or such issuance or redemption of preferred stock, as if the same had
occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio: (i) acquisitions that have been made by the specified Person or
any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during
the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be deemed to have occurred
on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving
effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income; (ii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date,
shall be excluded; and (iii) the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date,
shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation
Date.
6
"Foreign Subsidiary" means any non-U.S. domiciled Subsidiary.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements,
and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect
from time to time.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form
of Exhibit A-1 hereto issued in accordance with Section 2.01, 2.06(b),
2.06(d) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued
under this Indenture.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment
of which guarantee or obligations the full faith and credit of the
United States is pledged.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any
Indebtedness.
"Guarantors" means each of: (i) the Parent Company, (ii) each
other entity listed on Schedule A hereto; and (iii) any other Subsidiary
of the Company or the Parent Company that executes a Note Guarantee in
accordance with the provisions of this Indenture and their respective
successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under: (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements; and
(ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or the value of foreign
currencies purchased or received by such Person in the ordinary course
of business.
"Holder" means the Person in whose name a Note is registered on
the Registrar's books.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(i) borrowed money; (ii) evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement agreements in
respect thereof); (iii) banker's acceptances; (iv) representing Capital
Lease Obligations; (v) the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an
accrued expense or trade payable; or (vi) representing any Hedging
Obligations. If and to the extent any of the preceding item (other than
letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of the specified Person prepared in accordance with
GAAP. In addition, the term "Indebtedness" includes all Indebtedness of
others secured by a Lien on any asset of the specified Person (whether
or not such Indebtedness is assumed by the specified Person) and, to the
extent not otherwise included, the Guarantee by such Person of any
indebtedness of any other Person.
7
The amount of any Indebtedness outstanding as of any date shall
be: (i) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and (ii) the principal amount
thereof, together with any interest thereon that is more than 30 days
past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as defined in Rule 501(a)(i), (ii), (iii) or
(vii) under the Securities Act.
"Intercompany Notes" means the intercompany notes issued by
Restricted Subsidiaries that are not Guarantors of the Company in favor
of the Company to evidence advances by the Company, in the form attached
as Exhibit F to this Indenture.
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of
direct or indirect loans (including guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities,
together with all items that would be classified as investments on a
balance sheet prepared in accordance with GAAP excluding Hedging
Obligations. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving
effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.03(c).
"Issue Date" shall mean December 16, 1998.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of Boston, Massachusetts or at a place
of payment are authorized by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by
such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof any option or other
agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.
8
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person and its Restricted Subsidiaries, determined in
accordance with GAAP and before any reduction in respect of preferred
stock, dividends, excluding, however: (i) any gain (but not loss),
together with any related provision for taxes on such gain (but not
loss), realized in connection with: (a) any Asset Sale; or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or
any of its Restricted Subsidiaries; and (ii) any extraordinary or
nonrecurring gain (but not loss), together with any related provision
for taxes on such extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset
Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset
Sale), net of the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, and
sales commissions, and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof, in each case after
taking into account any available tax credits or deductions and any tax
sharing arrangements and amounts required to be applied to the repayment
of Indebtedness, other than Senior Debt, secured by a Lien on the asset
or assets that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness: (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness), (b) is directly or indirectly
liable as a guarantor or otherwise, or (c) constitutes the lender; (ii)
no default with respect to which (including any rights that the holders
thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder
of any other Indebtedness (other than the Notes) of the Company or any
of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (iii) as to which the lenders have
been notified in writing that they will not have any recourse to the
stock or assets of the Company or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Note Guarantee" means, individually and collectively, the
guarantees given by the Guarantors pursuant to Article 11 hereof,
including a notation in the Notes substantially in the form attached
hereto as Exhibit D.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
9
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of such
Person, or any Guarantor, as applicable.
"Officers' Certificate" means a certificate signed on behalf of
the Company by two Officers of the Company, one of whom must be the
principal executive officer, the principal financial officer or the
principal accounting officer of the Company, that meets the requirements
of Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 12.05 hereof. The counsel may be an employee of or counsel to
the Company (or any Guarantor, if applicable), any Subsidiary of the
Company or the Trustee.
"Parent Company" means, Mail-Well, Inc., a Colorado corporation.
"Participant" means, with respect to DTC, Euroclear or Cedel Bank,
a Person who has an account with DTC, Euroclear or Cedel Bank,
respectively (and, with respect to DTC, shall include Euroclear and
Cedel Bank).
"Permitted Businesses" means the printing business generally
including the business conducted by the Company and its Subsidiaries as
of the Issue Date and any other business or businesses ancillary,
complementary or related thereto.
"Permitted Junior Securities" means Equity Interests in the
Company or debt securities that are subordinated to all Senior Debt (and
any debt securities issued in exchange for Senior Debt) to substantially
the same extent as, or to a greater extent than, the Notes are
subordinated to Senior Debt pursuant to Article 10 of this Indenture.
"Permitted Investments" means, (i) any Investment in the Company
or in a Restricted Subsidiary of the Company; (ii) any Investment in
Cash Equivalents; (iii) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or (b)
such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company;
(iv) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.02 hereof; (v) Investments existing as of the
Issue Date; (vi) any acquisition of assets solely in exchange for the
issuance of Equity Interests of the Company; (vii) accounts receivable,
endorsements for collection, deposits or similar Investments arising in
the ordinary course of business; (viii) any Investment by the Company or
a Restricted Subsidiary in assets of a Permitted Business or assets to
be used in a Permitted Business; (ix) stock, obligations or securities
received in settlement of debts created in the ordinary course of
business and owing to the Company or any Subsidiary or in satisfaction
of judgments; (x) the acceptance of notes payable from employees of the
Company or its Subsidiaries in payment for the purchase of Capital Stock
by such employees; and (xi) any other Investment in any Person having an
aggregate fair market value (measured on the date each such Investment
was made and without giving effect to subsequent changes in value), when
10
taken together with all other Investments made pursuant to this clause
(xi) since the Issue Date and existing at the time such Investment was
made, did not exceed $25 million.
"Permitted Liens" means, (i) Liens securing Senior Debt; (ii)
Liens in favor of the Company or its Restricted Subsidiaries; (iii)
Liens when the Notes are secured by such Lien on an equal and ratable
basis unless the Obligation secured by any such Lien is subordinate or
junior in right of payment to the Notes, in which case the Lien securing
such Obligation must be subordinate and junior to the Lien securing the
Notes with the same or lesser relative priority as such Obligation shall
have been with respect to the Notes; (iv) Liens on property of a Person
existing at the time such Person is merged with or into or consolidated
with the Company or any Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with the Company or the
Restricted Subsidiary; (v) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the
Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (vi) Liens to secure the performance
of statutory obligations, surety or appeal bonds, performance bonds or
other obligations of a like nature incurred in the ordinary course of
business; (vii) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.04(b)(iv) hereof, covering only the
assets acquired with such Indebtedness; (viii) Liens existing on the
date of this Indenture; (ix) Liens on assets of Restricted Subsidiaries
to secure Senior Debt of such Restricted Subsidiaries that are permitted
by this Indenture to be incurred; (x) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are
being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall
have been made therefor; (xi) Liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, old age
pension or public liability obligations or to secure the payment or
performance of bids, tenders, statutory or regulatory obligations,
surety, stay, or appeal bonds, performance bonds or other obligations of
a like natural incurred in the ordinary course of business; (xii)
easements, rights-of-way, restrictions, defects or irregularities in
title and other similar charges or incumbrances not interfering in any
material respect with the business of the Company or any of its
Subsidiaries; (xiii) purchase money liens (including extensions and
renewals thereof); (xiv) Liens securing reimbursement obligations with
respect to letters of credit which encumber only documents and other
property relating to such letters of credit and the products and
proceeds thereof (xv) judgment and attachment Liens not giving rise to
an Event of Default; (xvi) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual or warranty
requirements; (xvii) liens arising out of consignment or similar
arrangements for the sale of goods; (xviii) any interest or title of a
lessor in property subject to any Capital Lease Obligation or operating
lease; (xix) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not, yet delinquent or being contested in good faith by appropriate
proceeding, if such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made in respect thereof, (xx)
Liens upon specific items of inventory or other goods and proceeds of
any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to
facilitate the purchase, shipment, or storage of such inventory or other
goods; (xxi) Liens securing Hedging Obligations that are otherwise
permitted under this Indenture; (xxii) leases or subleases granted to
others that do not materially interfere with the ordinary course of
business of the Company and its Subsidiaries; (xxiii) Liens arising from
filing Uniform Commercial Code financing statements regarding leases;
(xxiv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods; (xxv) Liens in favor of collecting or payor banks
having a right of setoff, revocation,
11
refund or chargeback with respect to money or instruments of the Company
or any Subsidiary on deposit with or in possession of such bank; (xxvi)
Liens to secure Non-Recourse Debt; and (xxvii) Liens not otherwise
permitted by clauses (i) through (xxvi) that are incurred in the
ordinary course of business of the Company or any Subsidiary of the
Company with respect to obligations that do not exceed $10 million at
any one time outstanding.
"Permitted Payments to Parent Company" means, (i) payments to the
Parent Company in an amount sufficient to permit the Parent Company to
pay reasonable and necessary operating expenses and other general
corporate expenses to the extent such expenses relate or are fairly
allocable to the Company and its Subsidiaries including any reasonable
professional fees and expenses not in excess of $1 million in the
aggregate during any consecutive 12-month period; and (ii) payment to
the Parent Company to enable the Parent Company to make any Tax Payment,
not to exceed the amount of any tax liabilities that would be otherwise
payable by the Company and its Subsidiaries to the appropriate taxing
authorities if they filed separate tax returns, to the extent that the
Parent Company has an obligation to pay such tax liabilities relating to
the operations, assets or capital of the Company or its Subsidiaries;
provided, however that (a), notwithstanding the foregoing, in the case
of determining the amount of a Tax Payment that is permitted to be paid
by the Company and any of its U.S. Subsidiaries in respect of their
Federal income tax liability, such payment shall be determined assuming
that the Company is the parent company of an affiliated group (the
"Company Affiliated Group") filing a consolidated Federal income tax
return and that the Parent Company and each such U.S. Subsidiary is a
member of the Company Affiliated Group and (b) any Tax Payments shall
either be used by the Parent Company to pay such tax liabilities within
90 days of the Parent Company's receipt of such payment or refunded to
the party from whom the Parent Company received such payments.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other that intercompany Indebtedness); provided
that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus accrued interest on
the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount reasonable expenses incurred in connection
therewith including premiums paid, if any, to the Holder thereof); (ii)
such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in
right of payment to the Notes, such Permitted Refinancing Indebtedness
has a final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and (iv) such Indebtedness is
incurred either by the Company or by the Restricted Subsidiary who is
the obligor, on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or
business).
12
"Principals" means the officers and directors of the Parent
Company at the Issue Date, their Affiliates (as such term is defined
under the Exchange Act) and the Parent Company's and Company's Employee
Stock Ownership Plan and Trust.
"Private Placement Legend" means the legend set forth in Section
2.07(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"RSTD Global Note" means the Global Note in the form of Exhibit A-
1 hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes transferred or exchanged to the Company or
any of its Subsidiaries, pursuant to an effective registration statement
under the Securities Act or pursuant to Rule 144 under the Securities
Act.
"Registration Rights Agreement" means that certain agreement among
the Company and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
Prudential Securities Incorporated, Bear, Xxxxxxx & Co. Inc. and
Xxxxxxx, Xxxxxx Inc. requiring the Company to file the Exchange Offer
Registration Statement and the Shelf Registration Statement.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note
in the form of Exhibit A-1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation
S Temporary Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note
in the form of Exhibit A-2 hereto bearing the Private Placement Legend
and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on
Rule 903 of Regulation S.
"Related Party" with respect to any Principal means, (i) any
controlling stockholder, 80% or more owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such
Principal; or (ii) any trust, corporation, partnership or other entity,
the beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 80% or more controlling interest of which
consist of such Principal and/or such other Persons, referred to in the
immediately preceding clause (i).
"Representative" means this Indenture trustee or other trustee,
agent or representative for any Senior Debt.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee
13
customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined
in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referenced Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means, (i) all Indebtedness outstanding under Credit
Facilities and all Hedging Obligations with respect thereto; (ii) any
other Indebtedness permitted to be incurred by the Company under the
terms of this Indenture unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with
or subordinated in right of payment to the Notes; and (iii) all
Obligations with respect to the items listed in the preceding clauses
(i) and (ii). Notwithstanding anything to the contrary in the preceding,
Senior Debt will not include: (i) any liability for federal, state,
local or other taxes owed or owing by the Company; (ii) any Indebtedness
of the Company to any of its Subsidiaries or other Affiliates; (iii)
any trade payables; or (iv) any Indebtedness that is incurred in
violation of this Indenture other than Indebtedness under a Credit
Facility that is incurred on the basis of a representation by the
Company to the applicable lenders that it is permitted to incur such as
Indebtedness under this Indenture.
"Shelf Registration Statement" means that certain shelf
registration statement filed by the Company with the Commission to
register resales of the Notes or the Exchange Notes.
"Significant Subsidiary" means any Subsidiary that is, or would
be, a "significant subsidiary" as defined Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act of 1933, as
such Regulation is in effect on the date hereof.
14
"Special Purpose Finance Vehicle" means any corporation,
partnership, joint venture, association, joint-stock company, or trust,
the common stock or similar securities of which are owned by the Company
or the Parent Company, formed for the sole purpose of facilitating or
engaging in financing transactions or a series of financing
transactions, including the issuance of trust preferred stock or similar
securities. Any Special Purpose Finance Vehicle formed by the Company
shall have restrictions to that effect in its organizational documents
and other restrictions that are typical for a special purpose entity,
including bankruptcy remoteness and a requirement that there be one or
more independent directors, general partners or trustees (as
applicable).
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which
such payment of interest or principal was scheduled to be paid in the
original documentation governing such Indebtedness, and shall not
include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for
the payment thereof.
"Subsidiary" means, with respect to any Person: (i) any
corporation, association or other business entity of which more than 50%
of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person (or a combination thereof); and (ii)
any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Tax Payment" means any payment of foreign, federal, state or
local tax liabilities.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03 hereof.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent global Note in the
form of Exhibit A-1 attached hereto that bears the Global Note Legend
and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes
that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company or
the Parent Company that is designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a Board Resolution, but only to the
extent that such Subsidiary: (i) has no Indebtedness other than Non-
Recourse Debt; (ii) is not party to any agreement, contract, arrangement
or understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; (iii) is a Person with respect to
which neither the Company
15
nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; (iv) has
not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and (v) has at least one director on its board of
directors that is not a director or executive officer of the Company or
any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of the Company or
any of its Restricted Subsidiaries. Any designation of a Subsidiary of
the Company or the Parent Company as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee a certified copy of
the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation compiled with the preceding
conditions and is permitted by Section 4.08 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as
an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company or the Parent Company as of such
date and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.09 hereof, the Company shall be in default of
such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma basis as
if such designation had occurred at beginning of the four-quarter
reference period; and (ii) no Default or Event of Default would be in
existence following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (i)
the sum of the products obtained by multiplying (a) the amount of each
then remaining installment sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment; by (ii) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital
Stock or other ownership interests of which (other than directors'
qualifying shares) shall at the time be owned by such Person and/or by
one or more Wholly Owned Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be
owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of
such Person.
16
Section 1.02. Other Definitions.
Term Defined in
Section
"Affiliate Transaction" 4.13
"Asset Sale Offer" 3.09
"Calculation Date" 1.01
"Change of Control Offer" 4.06
"Company Affiliated Group" 1.01
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Blockage Notice" 10.04
"Payment Default" 6.01
"Permitted Debt" 4.09
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payment" 4.08
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes and the Note Guarantees;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company or any Guarantor and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
17
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular;
(v) provisions apply to successive events and transactions; and
(vi) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections
or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The notation on each
Note relating to the Note Guarantees shall be substantially in the form
set forth on Exhibit D, which is a part of this Indenture. The Notes
may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Notes (including the
Note Guarantees) shall constitute, and are hereby expressly made, a part
of this Indenture and the Company, the Guarantors, and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent
any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be
controlling.
Notes issued in global form shall be substantially in the form of
Exhibits A-1 attached hereto (including the Global Note Legend and the
"Schedule of Exchanges in the Global Note" attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit
A-1 attached hereto (but without the Global Note Legend and without the
"Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian,
at the direction of the Trustee, in accordance with instructions given
by the Holder thereof as required by Section 2.06 hereof.
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Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note
(accompanied by a notation of the Note Guarantees duly endorsed by the
Guarantors), which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, at its Boston, Massachusetts
office, as custodian for the Depositary, and registered in the name of
the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel Bank, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Restricted Period shall be terminated upon the receipt by
the Trustee of (i) a written certificate from the Depositary, together
with copies of certificates from Euroclear and Cedel Bank certifying
that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners
thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities Act
and who will take delivery of a beneficial ownership interest in a 144A
Global Note or a RSTD Global Note bearing a Private Placement Legend,
all as contemplated by Section 2.06(a)(ii) hereof), and (ii) an
Officers' Certificate from the Company. Following the termination of
the Restricted Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests in
Regulation S Permanent Global Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee shall cancel the Regulation S
Temporary Global Note. The aggregate principal amount of the Regulation
S Temporary Global Note and the Regulation S Permanent Global Notes may
from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case
may be, in connection with transfers of interest as hereinafter
provided.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the
"General Terms and Conditions of Cedel Bank" and "Customer Handbook" of
Cedel Bank shall be applicable to transfers of beneficial interests in
the Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes that are held by the Agent Members through Euroclear or
Cedel Bank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the
Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by
two Officers, authenticate Notes, with the Note Guarantees endorsed
thereon, for original issue up to the aggregate principal amount stated
in paragraph 4 of the Notes. The aggregate principal amount of Notes
outstanding at any time may not exceed such amount except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this
19
Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company and the Guarantors shall maintain an office or agency
where Notes may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of
any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of the Guarantors may act
as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to the Global
Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium or Liquidated Damages, if any, or
interest on the Notes, and will notify the Trustee of any default by the
Company or the Guarantors in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Guarantor) shall have no further liability for the money. If the
Company or a Guarantor acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying
Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Company and/or the
Guarantors shall furnish to the Trustee at least seven Business Days
before each interest payment date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders
of Notes and the Company and the Guarantors shall otherwise comply with
TIA Section 312(a).
20
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary or to
another nominee of the Depositary, or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for
Definitive Notes if (i) the Company delivers to the Trustee notice from
the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice
from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Note be exchanged by the Company for Definitive Notes
prior to (x) the expiration of the Restricted Period and (y) the receipt
by the Registrar of any certificates required pursuant to Rule 903 under
the Securities Act. Upon the occurrence of either of the preceding
events in (i) or (ii) above, Definitive Notes (accompanied by a notation
of the Note Guarantees duly endorsed by the Guarantors) shall be issued
in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.11 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to Section 2.07 or 2.11 hereof, shall be authenticated
and delivered in the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as provided in
this Section 2.06(a), however, beneficial interests in a Global Note may
be transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration
of the Restricted Period transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred only to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required
to be delivered to the Registrar to effect the transfers described
in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests (other than a transfer of a
beneficial interest in a Global Note to a Person who takes
delivery thereof in the form of a beneficial interest in the same
Global Note), the transferor of such beneficial interest must
deliver to the Registrar either (A) (i) a written order from a
Participant or an Indirect Participant given to the
21
Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest
in another Global Note in an amount equal to the beneficial interest
to be transferred or exchanged and (ii) instructions given in
accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such
increase or (B) (i) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (ii) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (i)
above; provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903 under the Securities
Act. Upon an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the equirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture, the Notes and otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note
may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if
the transfer complies with the requirements of clause (ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (i) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary
Global Note or the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (ii) thereof;
and
(C) if the transferee will take delivery in the form
of a beneficial interest in the RSTD Global Note, then the
transferor must deliver (x) a certificate in the form of
Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item (iii)
thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. A beneficial interest in any Restricted
Global Note may be exchanged by any holder thereof for a
beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of clause (ii) above and:
22
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, is not (i) a broker-
dealer, (ii) a Person participating in the distribution of
the Exchange Notes or (iii) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (i)(a) thereof;
(ii) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit B hereto, including
the certifications in item (iv) thereof; and
(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement
Legend are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes (accompanied by a
notation of the Note Guarantees duly endorsed by the Guarantors) in an
aggregate principal amount equal to the principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a
Person who
23
takes delivery thereof in the form of a Definitive
Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (ii)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (i) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (ii) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(iii)(A) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (iii) thereof, if
applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (iii)(B) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(iii)(C) thereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a
Definitive Note (accompanied by a notation of the Note
Guarantees duly endorsed by the Guarantors) in the
appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(i)
shall bear the Private Placement Legend and shall be subject
to all restrictions on transfer contained therein.
24
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof,
a beneficial interest in the Regulation S Temporary Global Note
may not be (A) exchanged for a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(c)(iii)(B) under the Securities Act or (B) transferred to a
Person who takes delivery thereof in the form of a Definitive Note
prior to the conditions set forth in clause (A) above or unless
the transfer is pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule
904.
(iii) Notwithstanding 2.06(c)(i) hereof, a holder of a
beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case
of a transfer, is not (i) a broker-dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does
not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit C hereto,
including the certifications in item (i)(b) thereof;
(ii) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of a Definitive Note that
does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (iv)
thereof; and
(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement
Legend are not required in order to maintain
compliance with the Securities Act.
25
(iv) If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such
beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set
forth in Section 2.06(b)(ii) hereof, the Trustee shall
cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute
and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive
Note (accompanied by a notation of the Note Guarantees
duly endorsed by the Guarantors) in the appropriate
principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this
Section 2.06(c)(iv) shall be registered in such name
or names and in such authorized denomination or
denominations as the holder of such beneficial
interest shall instruct the Registrar through
instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iv) shall not bear the Private
Placement Legend. A beneficial interest in an
Unrestricted Global Note cannot be exchanged for a
Definitive Note bearing the Private Placement Legend
or transferred to a Person who takes delivery thereof
in the form of a Definitive Note bearing the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) If any Holder of a Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in
a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications
in item (ii)(b) thereof;
(B) if such Definitive Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (i) thereof;
(C) if such Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (ii) thereof;
(D) if such Definitive Note is being transferred
pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(iii)(A) thereof;
(E) if such Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (iii) thereof, if
applicable;
26
(F) if such Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (iii)(B) thereof; or
(G) if such Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(iii)(C) thereof, the Trustee shall cancel the Definitive
Note, increase or cause to be increased the aggregate
principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in all other cases,
the RSTD Global Note.
(ii) A Holder of a Restricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, is not (i) a
broker-dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (i)(c)
thereof;
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (iv)
thereof; and
(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such Definitive Notes
27
are being exchanged or transferred in compliance with
any applicable blue sky securities laws of any State
of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(iii) A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request
for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes (accompanied by
a notation of the Note Guarantees duly endorsed by the Guarantors) in an
aggregate principal amount equal to the principal amount of beneficial
interests transferred pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar
shall register the transfer or exchange of Definitive Notes. Prior to
such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Notes duly endorsed
or accompanied by a written instruction of transfer in form satisfactory
to the Registrar duly executed by such Xxxxxx or by his attorney, duly
authorized in writing. In addition, the requesting Holder shall provide
any additional certifications, documents and information, as applicable,
pursuant to the provisions of this Section 2.06(e).
(i) Restricted Definitive Notes may be transferred to and
registered in the name of Persons who take delivery thereof if the
Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (i) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (ii) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (iii) thereof, if applicable.
28
(ii) Any Restricted Definitive Note may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, is not (i) a
broker-dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including
the certifications in item (i)(a) thereof;
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (iv) thereof; and
(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such Restricted Definitive
Note is being exchanged or transferred in compliance
with any applicable blue sky securities laws of any
State of the United States.
(iii) A Holder of Unrestricted Definitive Notes may transfer
such Notes to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note. Upon receipt of a request for
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder
thereof. Unrestricted Definitive Notes cannot be exchanged for or
transferred to Persons who take delivery thereof in the form of a
Restricted Definitive Note.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall
issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes (accompanied by a notation of the Note
Guarantees duly endorsed by the Guarantors) in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Notes
29
tendered for acceptance by persons that are not (x) broker-dealers, (y)
Persons participating in the distribution of the Exchange Notes or (z)
Persons who are affiliates (as defined in Rule 144) of the Company and
accepted for exchange in the Exchange Offer and (ii) Definitive Notes
(accompanied by a notation of the Note Guarantees duly endorsed by the
Guarantors) in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Notes accepted for exchange in the
Exchange Offer. Concurrent with the issuance of such Notes, the Trustee
shall cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly, and the Company shall execute
and the Trustee shall authenticate and deliver to the Persons designated
by the Holders of Definitive Notes so accepted Definitive Notes in the
appropriate principal amount.
(g) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER (i) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), OR (B) IT IS NOT A U.S. PERSON, IS NOT
ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (ii) AGREES THAT IT WILL NOT, WITHIN
THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING
INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES
ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB
30
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND,
IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, AND (iii) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
NOTE OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE
902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note
or Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or
(f) to this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS
31
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such
Global Note shall be returned to or retained and canceled by the Trustee
in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged
for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such
Global Note, by the Trustee or by the Depositary at the direction of the
Trustee, to reflect such reduction; and if the beneficial interest is
being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement
shall be made on such Global Note, by the Trustee or by the Depositary
at the direction of the Trustee, to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Global Notes and Definitive Notes (in each case, accompanied by a
notation of the Note Guarantees duly endorsed by the Guarantors)
upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable
32
in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 4.02, 4.06 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being
redeemed in part.
(iv) All Global Notes and Definitive Notes (in each case,
accompanied by a notation of the Note Guarantees duly endorsed by
the Guarantors) issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Company and the Guarantors, evidencing the same
debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the day of
mailing of notice of redemption and ending at the close of
business on the day of such mailing, (B) to register the transfer
of or to exchange any Note so selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed
in part or (C) to register the transfer of or to exchange a Note
between a record date and the next succeeding Interest Payment
Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all
other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes (in each case, accompanied by a notation of the
Note Guarantees duly endorsed by the Guarantors) in accordance
with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a transfer or exchange may be submitted by
facsimile.
(ix) Each Holder of a Note agrees to indemnify the
Company and the Trustee against any liability that may result from
the transfer, exchange or assignment of such Xxxxxx's Note in
violation of any provision of this Indenture and/or applicable
United States federal or state securities law.
(x) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any
Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Note)
other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do
so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
33
(j) Each beneficial owner of an interest in a Note agrees to
indemnify the Company and the Trustee against any liability that may
result from the transfer, exchange or assignment by such beneficial
owner of such interest in violation of any provision of this Indenture
and/or applicable United States federal or state securities law.
(k) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among beneficial owners of interest in any Global Note) other than to
require delivery of such certificate and other documentation or evidence
as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express
requirements hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of
the Company, shall authenticate a replacement Note (accompanied by a
notation of the Note Guarantees duly endorsed by the Guarantors) if the
Trustee's requirements are met. An indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Guarantors, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company
and the Guarantors and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it
for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and
those described in this Section as not outstanding. Except as set forth
in Section 2.09 hereof, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after
that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.
34
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, by any Guarantor or by any Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any Guarantor, shall be considered as
though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Notes that a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes (accompanied
by a notation of the Note Guarantees duly endorsed by the Guarantors)
upon a written order of the Company signed by two Officers of the
Company. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to
the Trustee. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Notes (accompanied by a
notation of the Note Guarantees duly endorsed by the Guarantors) in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall return such canceled Notes to the Company.
The Company may not issue new Notes to replace Notes that it has paid or
that have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If either the Company or any Guarantor defaults in a payment of
interest on the Notes, it or they (to the extent of their obligations
under the Note Guarantees) shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent
special record date, in each case at the rate provided in the Notes and
in Section 4.01 hereof. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no
such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company)
shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such
interest to be paid.
35
Section 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 35 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and
(iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee will select Notes for redemption on a pro rata basis, by lot or
by such method as the Trustee shall deem fair and appropriate.
No Notes of $1,000 or less shall be redeemed in part. Notices of
redemption shall be mailed by first class mail at least 30 but not more
than 60 days before the redemption date to each Holder of Notes to be
redeemed at its registered address. Notices of redemption may not be
conditional.
If any Note is to be redeemed in part only, the notice of
redemption that relates to that Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount
equal to the unredeemed portion of the original Note will be issued in
the name of the Holder thereof upon cancellation of the original Note.
Notes called for redemption become due on the date fixed for redemption.
On and after the redemption date, interest ceases to accrue on Notes or
portions of them called for redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption
to each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed (including cusip
numbers) and shall state:
(a) the redemption date;
36
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed;
and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days
prior to the redemption date, an Officers' Certificate requesting that
the Trustee give such notice and setting forth the information to be
stated in such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. A notice of
redemption may not be conditional.
Section 3.05. Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to
pay the redemption price of and accrued interest on all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall promptly
return to the Company any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption. If
a Note is redeemed on or after an interest record date but on or prior
to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful
37
on any interest not paid on such unpaid principal, in each case at the
rate provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note
(accompanied by a notation of the Note Guarantees duly endorsed by the
Guarantors) equal in principal amount to the unredeemed portion of the
Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Notes will pursuant to
this Section 3.07 prior to December 15, 2003. Thereafter, the Company
may redeem all or a part of these Notes upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages
of principal amount) set forth below plus accrued and unpaid interest
thereon, if any, to the applicable redemption date, if redeemed during
the twelve-month period beginning on December 15 of the years indicated
below:
YEAR PERCENTAGE
2003 104.375%
2004 102.917%
2005 101.458%
2006 and thereafter 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section
3.07 at any time prior to December 15, 2001, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of
Notes originally issued under this Indenture at a redemption price of
108.75% of the principal amount thereof, plus accrued and unpaid
interest to the redemption date, with the net cash proceeds of one or
more Equity Offerings; provided that: (i) at least $195 million in
aggregate principal amount of Notes remains outstanding immediately
after the occurrence of such redemption (excluding Notes held by the
Parent Company, the Company and their Subsidiaries); and (ii) the
redemption must occur within 45 days of the date of the closing of such
Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
38
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 4.06 and 4.07 hereof, the
Company shall not be required to make mandatory redemption payments with
respect to the Notes.
Section 3.09. Offer to Purchase by Application of Net Proceeds.
In the event that, pursuant to Section 4.07 hereof, the Company
shall be required to commence an offer to all Holders to purchase Notes
(an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that
a longer period is required by applicable law (the "Offer Period").
Promptly after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.07 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no additional interest
shall be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the
Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.07 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrete or accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the
39
Company, or a Paying Agent at the Address specified in the notice at
least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Xxxxxx is withdrawing his election to have such Note
purchased;
(h) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Company shall select the Notes
to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes (accompanied by a notation of the Note Guarantees
duly endorsed by the Guarantors) equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by book-
entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered,
all Notes tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section
3.09. The Company, the Depositary or the Paying Agent, as the case may
be, shall promptly mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly
issue a new Note (in each case, accompanied by a notation of the Note
Guarantees duly endorsed by the Guarantors), and the Trustee, upon
written request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other
than the Company or any Guarantor thereof, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company shall
pay all Liquidated Damages, if any, in the same manner on the dates and
in the amounts set forth in the Registration Rights Agreement.
40
The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest
rate on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard
to any applicable grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Notes
may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company or the Guarantors in
respect of the Notes and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, the City of New York for
such purposes. The Company shall give prompt written notice to the
Trustee of any such designation or rescission and of any change in
location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. Compliance Certificate.
(a) The Company and the Guarantors shall deliver to the Trustee,
within 90 days after the end of the fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining
whether the Company or such Guarantor, as the case may be, has kept,
observed, performed and fulfilled its obligations under this Indenture
and the Guarantees, respectively, and further stating, as to each such
Officer signing such certificate, that to the best of his or her
knowledge the Company or such Guarantor, as the case may be, has kept,
observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of
any of the terms, provisions and conditions of this Indenture (or, if a
Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and
what action the Company or such Guarantor, as the case may be, is taking
or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of or interest, if any, on
the Notes is prohibited or if such event has occurred, a description of
the event and what action the Company or such Guarantor, as the case may
be, is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.19(a) shall
41
be accompanied by a written statement of the Company's independent
public accountants (who shall be a firm of establish ed national
reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that
would lead them to believe that the Company has violated any provisions
of Article 4 or Article 5 hereof or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) Each of the Company and the Guarantors shall, so long as any
of the Notes are outstanding, deliver to the Trustee, forthwith upon any
Officer of the Company or any Guarantor becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.04. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
Section 4.05. Stay, Extension and Usury Laws.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or
at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer
and permit the execution of every such power as though no such law has
been enacted.
Section 4.06. Change of Control.
(a) If a Change of Control occurs, each Holder of Notes shall
have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of that Xxxxxx's Notes
pursuant to the offer described below (the "Change of Control Offer").
In the Change of Control Offer, the Company shall offer a "Change of
Control Payment" in cash equal to 101% of the aggregate principal amount
of Notes repurchased plus accrued and unpaid interest thereon, if any,
to the date of purchase. Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and
offering to repurchase Notes on the Change of Control Payment Date
specified in such notice, pursuant to the procedures required by this
Indenture and described in such notice. The Company shall comply with
the requirements of Rule 14e-l under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the
Notes as a result of a Change of Control.
(b) Subject to Section 4.06(d), on the Change of Control Payment
Date, the Company shall, to the extent lawful;
42
(i) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions
thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions thereof being
purchased by the Company.
(c) The Paying Agent shall promptly mail to each Holder of Notes
so tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided that
each such new Note shall be in a principal amount of $1,000 or an
integral multiple thereof.
(d) Prior to complying with any of the provisions of this
Section 4.06, but in any event within, 90 days following a Change of
Control, the Company shall either repay all outstanding Senior Debt or
obtain the requisite consents, if any, under all agreements governing
outstanding Senior Debt to permit the repurchase of Notes required by
this covenant. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(e) The provisions described in this Section 4.06 require the
Company to make a Change of Control Offer following a Change of Control
shall be applicable regardless of whether or not any other provisions of
this Indenture are applicable.
(f) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change
of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Indenture applicable to a Change
of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
Section 4.07. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least equal
to the fair market value of the assets or Equity Interests issued or
sold or otherwise disposed of;
(b) such fair market value is determined by the Company's Board
of Directors and evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee; and
(c) at least 80% of the Net Proceeds received by the Company or
such Restricted Subsidiary is in the form of cash. For purposes of this
provision, each of the following shall be deemed to be cash:
43
(i) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet), of the Company
or any Restricted Subsidiary (other than contingent liabilities
and liabilities that are by their terms subordinated to the Notes
or any Note Guarantee) that are used by the transferee of any such
assets pursuant to a customary novation agreement that releases
the Company or such Restricted Subsidiary from further liability;
and
(ii) any securities, notes or other obligations received
by the Company or any such Restricted Subsidiary from such
transferee that are contemporaneously (subject to ordinary
settlement periods) converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received in that
conversion).
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company, or a Restricted Subsidiary must apply such Net
Proceeds:
(a) by reinvesting in the business of the Company or such
Restricted Subsidiary;
(b) by repaying outstanding Senior Debt; or
(c) by offering to purchase the Notes at 100% of principal
amount, plus accrued and unpaid interest, if any.
Section 4.08. Restricted Payments.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment
or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or
consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests
in their capacity as such (other than dividends or distributions
payable in Equity Interests of the Company or a Restricted
Subsidiary or to the Company or a Restricted Subsidiary of the
Company);
(ii) purchase, redeem or otherwise acquire or retire for
value (including, without limitation, in connection with any
merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the
Company or any Restricted Subsidiary of the Company (other than
any such Equity Interests owned by the Company or any Restricted
Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is pari passu with or subordinated to the Notes
or the Note Guarantees (other than the Notes or the Note
Guarantees), except a payment of interest or principal at the
Stated Maturity thereof; or
(iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"),
44
unless, at the time of and after giving effect to such Restricted
Payment:
(i) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(ii) the Company, at the time of such Restricted Payment
and after giving pro forma effect thereto as such Restricted
Payment had been made at the beginning of the applicable four-
quarter period, would have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a); and
(iii) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and
its Restricted Subsidiaries after the date of this Indenture
(excluding Restricted Payments permitted by clauses (ii), (iii),
(iv), (vi), (viii) and (ix) of the next succeeding paragraph), is
less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income (minus 100%
of any Consolidated Net Loss) of the Company since January
1, 1999, plus
(B) the aggregate net cash proceeds received after
the Issue Date from the sale of Equity Interests or any
Indebtedness that is convertible into Capital Stock and has
been so converted, plus
(C) the aggregate cash received by the Company as
capital contributions after the Issue Date, plus
(D) $15 million.
(b) For so long as no Default has occurred and is continuing or
would be caused thereby, the preceding provisions of this Section 4.08
shall not prohibit:
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of this Indenture;
(ii) the repurchase, redemption, defeasance, retirement or
other acquisition of the Company's $85 million aggregate principal
amount of 10 1/2% Senior Subordinated Notes due 2004;
(iii) the repurchase, redemption, defeasance, retirement or
other acquisition of any pari passu or subordinated Indebtedness
of the Company or any Guarantor or of any Equity Interests of the
Company or any Restricted Subsidiary in exchange for, or out of
the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company) of, Equity Interests of the
Company;
(iv) the redemption, repurchase, defeasance, retirement or
other acquisition of pari passu or subordinated Indebtedness of
the Company or any Guarantor with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;
45
(v) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its common Equity
Interests on a pro rata basis;
(vi) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Parent Company
or the Company or any Restricted Subsidiary of the Company held by
any member of the Parent Company's or Company's (or any of its
Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement in effect as of
the date of this Indenture; provided that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $1 million in any twelve-month period;
(vii) the making of any Restricted Investment, directly or
indirectly, out of the net cash proceeds of substantially
concurrent sales (other than to a Subsidiary) of Equity Interests
of the Company;
(viii) the repurchase, redemption, retirement or other
acquisition of Equity Interests of the Company or any Restricted
Subsidiary issued, or Indebtedness incurred, by the Company or any
Restricted Subsidiary in connection with the acquisition of any
Person or any assets to the former owners of such Person or
assets; and
(ix) Permitted Payments to the Parent Company.
(c) The amount of all Restricted Payments (other than cash)
shall be the fair market value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the
Company or such Restricted Subsidiary, as the case may be, pursuant to
the Restricted Payment. The fair market value of any assets or
securities that are required to be valued by this covenant shall be
determined by the Board of Directors whose resolution with respect
thereto shall be delivered to the Trustee. The Board of Directors'
determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if
the fair market value exceeds $5 million. Not later than 15 days after
the end of the fiscal quarter in which any Restricted Payment is made,
the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the
basis upon which the calculations required by this Section 4.08 were
computed, together with a copy of any fairness opinion or appraisal
required by this Indenture.
Section 4.09. Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively,
"incur") any Indebtedness (including Acquired Debt); provided, however,
that the Company and any Restricted Subsidiary may incur Indebtedness
(including Acquired Debt), if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred would have been
at least 2 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred at the beginning of such four-quarter
period.
46
(b) Notwithstanding the prohibitions of paragraph (a) of this
Section 4.09, the Company may incur of any of the following items of
Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company and any Restricted
Subsidiary of the Indebtedness under Credit Facilities; provided
that the aggregate principal amount of all Indebtedness, under
such Credit Facilities does not exceed an amount equal to $300
million;
(ii) the incurrence by the Company and its Subsidiaries of
Existing Indebtedness;
(iii) the incurrence by the Company and the Subsidiary
Guarantors of Indebtedness represented by the Notes and the Note
Guarantees;
(iv) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness represented by Capital
Lease Obligations, mortgage financings or purchase money
obligation, in each case, incurred for the purpose of financing
all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business
of the Company or such Restricted Subsidiary, in an aggregate
principal amount not to exceed $25 million at any time
outstanding;
(v) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to refund,
refinance or replace, Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred
under the first paragraph of this covenant or clause (ii) or (iii)
of this paragraph;
(vi) the incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness between or
among the Company and any of its Wholly Owned Restricted
Subsidiaries; provided, however, that:
(A) if the Company or any Subsidiary Guarantor is
the obligor on such Indebtedness, such Indebtedness must be
expressly subordinated to the prior payment in full in cash
of all Obligations with respect to the Notes, in the case of
the Company, or the Note Guarantee of such Subsidiary
Guarantor, in the case of a Subsidiary Guarantor; and
(B) (i) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being
held by a Person other than the Company or a Wholly Owned
Restricted Subsidiary thereof and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not
either the Company or a Wholly Owned Restricted Subsidiary
thereof, shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, that was not
permitted by this clause (vi);
(vii) the incurrence by the Company or any of its
Restricted Subsidiaries of Hedging Obligations that are incurred
for the purpose of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness that is permitted by the
terms of this Indenture to be outstanding;
47
(viii) the guarantee by the Company or any of its
Restricted Subsidiaries of Indebtedness of the Company or a
Restricted Subsidiary of the Company that was permitted to be
incurred by another provision of this covenant;
(ix) the incurrence by the Company or any of its
Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accrued value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (ix), not to exceed $50 million;
(x) the incurrence by the Company's Unrestricted
Subsidiaries of Non-Recourse Debt; provided, however, that if any
such Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, such event shall be deemed to constitute
an incurrence of Indebtedness by a Restricted Subsidiary of the
Company that was not permitted by this clause (x);
(xi) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness in respect of judgment,
appeal, surety, performance and other like bonds, bankers
acceptances and letters of credit provided by the Company and its
Subsidiaries in the ordinary course of business (including any
Indebtedness incurred to refinance, retire, renew, defease, refund
or otherwise replace any Indebtedness referred to in this clause
(xi)); and
(xii) Indebtedness incurred by the Company or any of its
Subsidiaries arising from agreements or their respective bylaws
providing for indemnification, adjustment of purchase price or
similar obligations, or from guarantees of letters of credit,
surety bonds or performance bonds securing the performance of the
Company or any of its Subsidiaries to any Person acquiring all or
a portion of such business or assets of a Subsidiary of the
Company for the purpose of financing such acquisition.
(c) For purposes of determining compliance with this Section, in
the event that an item of proposed Indebtedness meets the criteria of
more than one of the categories of Permitted Debt described in
paragraphs (b)(i) through (b)(xii) above, or is entitled to be incurred
pursuant to the first paragraph of this covenant, the Company shall be
permitted to classify such item of Indebtedness on the date of its
incurrence in any manner that complies with this Section 4.09.
Section 4.10. Anti-Layering.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or
junior in right of payment to any Senior Debt of the Company and senior
in any respect in right of payment to the Notes. No Guarantor shall
incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is subordinate or junior in right of payment to
any Senior Debt of such Guarantor and senior in any respect in right of
payment to such Guarantor's Note Guarantee.
Section 4.11. Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer
to own any Lien of any kind securing Indebtedness, Attributable Debt or
trade payables on any asset now owned or hereafter acquired, except
Permitted Liens.
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Section 4.12. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create or permit to exist or become
effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to pay dividends or make any other distributions
or pay Indebtedness to the Company or any of the Company's Restricted
Subsidiaries, or with respect to any other interest or participation in,
or measured by, its profits, or pay any indebtedness owed to the Company
or any of the Company's Restricted Subsidiaries.
Section 4.13. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or
for the benefit of, any Affiliate (each, an "Affiliate Transaction"),
unless:
(a) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and
(b) the Company delivers to the Trustee:
(i) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate
consideration in excess of $1 million, a resolution of the Board
of Directors set forth in the Officers' Certificate certifying
that such Affiliate Transaction complies with this covenant and
that such Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors; and
(ii) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate
consideration in excess of $10 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of
the prior paragraph:
(a) any employment agreement entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Restricted
Subsidiary;
(b) indemnification agreements permitted by law entered into by
the Company or any of its Restricted Subsidiaries with any of its
Affiliates who are directors, employees or agents of the Company or any
of its Restricted Subsidiaries;
(c) transactions between or among the Company and/or its
Restricted Subsidiaries;
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(d) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Company; and
(e) Restricted Payments that are permitted by Section 4.08.
Section 4.14. Additional Subsidiary Guarantees.
If after the Issue Date the Company, the Parent Company or any
Restricted Subsidiary of the Company acquires or creates another
Restricted Subsidiary (other than a Special Purpose Finance Vehicle) and
such Restricted Subsidiary is formed under the laws of a state of the
United States (including the District of Columbia) and has its principal
place of business within the United States, then as such time as such
Restricted Subsidiary first becomes a Significant Subsidiary of the
Company or the Parent Company, as applicable, that newly acquired or
created Restricted Subsidiary must become a Guarantor and execute a
supplemental indenture satisfactory to the Trustee and deliver an
opinion of counsel to the Trustee within 10 Business Days of the date on
which it was acquired or created.
Section 4.15. Limitations on Issuances of Guarantees of Indebtedness.
The Company shall not permit any of its Restricted Subsidiaries
that is not a Guarantor of the Notes, directly or indirectly, to
Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company or the Parent Company unless such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture
providing for the Guarantee of the payment of the Notes by such
Restricted Subsidiary to the same extent as such Guarantee of such other
Indebtedness, which Guarantee shall be senior to or pari passu with such
Restricted Subsidiary's Guarantee of or pledge to secure such other
Indebtedness, unless such other Indebtedness is Senior Debt, in which
case the Guarantee of the Notes may be subordinated to the Guarantee of
such Senior Debt to the same extent as the Notes are subordinated to
such Senior Debt.
Notwithstanding the preceding paragraph, any Note Guarantee of the
Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged under the circumstances
described in Section 11.05.
Section 4.16. Business Activities.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than Permitted Businesses.
Section 4.17. Advances to Subsidiaries.
After the Issue Date any advance made by the Company to a
Restricted Subsidiary that is not a Guarantor shall be evidenced by an
Intercompany Note in favor of the Company.
Section 4.18. Payments for Consent.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such
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considerations is offered to be paid and is paid to all Holders of the
Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or
agreement.
Section 4.19. Reports.
(a) Whether or not required by the Commission, so long as any
Notes are outstanding, the Company shall furnish to the Holders of
Notes, within the time periods specified in the Commission's rules and
regulations:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q
and 10-K, if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" and, with respect to the annual information only, a
report on the annual financial statements by the Company is certified
independent accountants; and
(ii) all current reports that would be required to be filed with
the Commission on Form 8-K if the Company were required to file such
reports.
(b) The quarterly and annual financial information required by
the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the
footnotes thereto, and in Management's Discussion and Analysis of
Financial Condition and Results of Operations, of the financial
condition and results of operations of the Company and its Subsidiary
Guarantors separate from the financial condition and results of
operations of the other Subsidiaries of the Company.
(c) In addition, whether or not required by the Commission, the
Company shall file a copy of all of the information and reports referred
to in clauses (a) and (b) above with the Commission for public
availability within the time periods specified in the Commission's rules
and regulations (unless the Commission shall not accept such a filing)
and make such information available to securities analysts and
prospective investors upon request.
(d) In addition, the Company shall file with the Trustee such
other information, documents and other reports which the Company is
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act.
(e) For so long as any Notes remain outstanding (unless the
Company is subject to the reporting requirements of the Exchange Act),
the Company and the Guarantors shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
(f) The foregoing reporting obligations set forth in this Section
4.19 may be satisfied by reports prepared and filed by the Parent Company
on a consolidated basis under the requirements of the Exchange Act.
(g) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the
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Company's compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company may not, directly or indirectly: (i) consolidate or
merge with or into another Person (whether or not the Company is the
surviving corporation); or (ii) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of its properties or
assets, in one or more related transactions, to another Person; unless:
(a) either: (i) the Company is the surviving corporation; or
(ii) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state
thereof or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall have been
made, expressly assumes all the obligations of the Company under the
Notes and this Indenture pursuant to agreements reasonably satisfactory
to the Trustee;
(c) immediately after such transaction no Default or Event of
Default exists; and
(d) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company):
(i) shall have Consolidated Net Worth immediately after
the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction; and
(ii) shall, on the date of such transaction after giving
pro forma effect thereto and any related financing transactions as
if the same had occurred at the beginning of the applicable four-
quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a).
In addition, the Company may not, directly or indirectly, lease
all or substantially all of its properties or assets, in one or more
related transactions, to any other Person. This Section 5.01 shall not
apply to a merger, consolidation, sale, assignment, transfer, conveyance
or other disposition of assets between or among the Company and any of
its Wholly-Owned Subsidiaries.
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Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.01 hereof,
the successor corporation formed by such consolidation or into or with
which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of
this Indenture referring to the "Company" or the "Guarantor," as the
case may be, shall refer instead to the successor corporation and not to
the Company or the Guarantor, as the case may be), and may exercise
every right and power of the Company or applicable Guarantor, as the
case may be, under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided,
however, that the predecessor Company and the predecessor Subsidiaries
that are Guarantors shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of
all of the Company's assets that meets the requirements of Section 5.01
hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following is an Event of Default:
(a) default for 30 days in the payment when due of interest on,
or Liquidated Damages with respect to, the Notes, whether or not
prohibited by the subordination provisions of this Indenture;
(b) default in payment when due of the principal of or premium,
if any, on the Notes, whether or not prohibited by the subordination
provisions of this Indenture;
(c) failure by the Company or any of its Restricted Subsidiaries
to comply with the provisions described under Sections 3.09, 4.06, 4.07,
4.08, 4.09 and 5.01 hereof;
(d) failure by the Company or any of its Restricted Subsidiaries
to comply with any of the other agreements in this Indenture for 60 days
after notice to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding;
(e) default under any mortgage, indenture or instrument under
which they may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such Indebtedness
or guarantee now exists, or is created after the date of this Indenture,
if that default:
(i) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on
the date of such default (a "Payment Default"); or
(ii) results in the acceleration of such Indebtedness
prior to its express maturity,
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and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $10 million or more;
(f) failure by the Company or any of its Restricted Subsidiaries
to pay final judgments aggregating in excess of $10 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(g) except as permitted by this Indenture, any Note Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under its Note Guarantee; and
(h) the Company or any of the Company's Restricted Subsidiaries
that are Significant Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become
due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of the
Company's Restricted Subsidiaries that are Significant
Subsidiaries or any group of Restricted Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary in an
involuntary case;
(ii) appoints a custodian of the Company or any of the
Company's Restricted Subsidiaries that are Significant
Subsidiaries or any group of Restricted Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of the
Company's Restricted Subsidiaries that are Significant
Subsidiaries or any group of Restricted Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of the
Company's Restricted Subsidiaries that are Significant
Subsidiaries or any group of Restricted Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
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Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified
in clause (h) of Section 6.01 hereof with respect to the Company, any
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately. Upon
any such declaration, the Notes shall become due and payable
immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (h) of Section 6.01 hereof occurs with respect to
the Company, any Guarantor constituting a Significant Subsidiary or any
group of Guarantors that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes shall be due and payable immediately
without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict
with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due
solely because of the acceleration) have been cured or waived.
If an Event of Default occurs by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant
to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable,
to the extent permitted by law, anything in this Indenture or in the
Notes to the contrary notwithstanding. If an Event of Default occurs
prior to December 15, 2003 by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Notes prior to such
date, then, upon acceleration of the Notes, an additional premium shall
also become and be immediately due and payable in an amount, for each of
the years beginning on December 15, of the years set forth below, as set
forth below (expressed as percentages of principal amount):
YEAR PERCENTAGE
1998 111.665%
1999 110.207%
2000 108.749%
2001 107.291%
2002 105.833%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising
any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted
by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium and
Liquidated Damages, if any, or interest on, the Notes (including in
connection with an offer to purchase) (provided, however, that the
Holders of a majority in aggregate principal amount of the then
outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
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A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority
over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with
an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium and Liquidated Damages, if any,
and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Holders of the Notes allowed in any judicial
proceedings relative to the Company or any of the Guarantors (or any
other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof
out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
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Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, premium and
Liquidated Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses against any
party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its
exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
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(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of
any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall
be under no obligation to exercise any of its rights and powers under
this Indenture at the request of any Holders, unless such Holder shall
have offered to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any
Guarantor shall be sufficient if signed by an Officer of the Company or
any Guarantor.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by a Responsible Officer at the
Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any
Guarantors or any Affiliate of the Company with the same rights it would
have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or
resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the
Notes or the Note Guarantees, it shall not be accountable for the
Company's use of the proceeds from the Notes or any money paid to the
Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall
not be responsible for any statement or recital herein or any statement
in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is actually known to the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Note, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders of the Notes.
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Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the
Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee from time
to time such compensation as shall be agreed upon in writing between the
Company and the Trustee for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company
and the Guarantors shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by
it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of
the Trustee's agents and counsel.
The Company and the Guarantors shall indemnify each of the Trustee
or any successor Trustee against any and all losses, damages, claims,
liabilities or expenses (including taxes (other than taxes based on the
income of the Trustee)) incurred by it arising out of or in connection
with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture
against the Company and the Guarantors (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company, any
Guarantor, or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company and the Guarantors of their obligations hereunder.
The Company and the Guarantors shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel
and the Company and the Guarantors shall pay the reasonable fees and
expenses of such counsel. The Company and the Guarantors need not pay
for any settlement made without their consent, which consent shall not
be unreasonably withheld.
The obligations of the Company and the Guarantors under this
Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
To secure the Company's and the Guarantors' payment obligations in
this Section, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) hereof occurs, the
expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses
of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders
of Notes of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, any Guarantor or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply
with Section 7.10, such Holder of a Note may petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders of the Notes. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have
been paid and subject to the Lien provided for in Section 7.07 hereof.
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Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's and the Guarantors' obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Xxxxxx, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be
the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such
laws to exercise corporate trustee power, that is subject to supervision
or examination by federal or state authorities and that has a combined
capital and surplus of at least $250 million as set forth in its most
recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is
subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in
this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company and the Guarantors
shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from their
respective obligations with respect to all outstanding Notes and Note
Guarantees, as applicable, on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors shall be
deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the
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following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to
receive solely from the trust fund described in Section 8.04 hereof, and
as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest and Liquidated Damages on
such Notes when such payments are due, (b) the Company's and the
Guarantors' obligations with respect to such Notes under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's and the
Guarantors' obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and the Guarantors
shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from its obligations under the
covenants contained in Sections 4.06, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but
shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through 6.01(g) hereof shall not constitute Events of
Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and Liquidated Damages, and interest on the
outstanding Notes on the stated maturity or on the applicable redemption
date, as the case may be, and the Company must specify whether the Notes
are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that
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(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion
of the proceeds of which shall be used to defease the Notes pursuant to
this Article 8 concurrently with such incurrence) or insofar as Sections
6.01(h) or 6.01(i) hereof is concerned, at any time in the period ending
on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or the Guarantors or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or the
Guarantors; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of
this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become
due thereon in
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respect of principal, premium, if any, Liquidated Damages and interest,
but such money need not be segregated from other funds except to the
extent required by law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities
held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.04(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to effect
an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of,
premium, if any, Liquidated Damages or interest on any Note and
remaining unclaimed for two years after such principal, and premium, if
any, Liquidated Damages or interest has become due and payable shall,
subject to applicable escheat law, be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as a secured creditor,
look only to the Company or Guarantors for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times
------------------
and The Wall Street Journal (national edition), notice that such money
-----------------------
remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining shall be
repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order
or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the
Company's and the Guarantors' obligations under this Indenture, the
Notes and the Note Guarantees, as applicable, shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof,
as the case may be; provided, however, that, if the Company or the
Guarantors make any payment of principal of, premium, if any, Liquidated
Damages or interest on any Note following the reinstatement of its
obligations, the Company and the Guarantors shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and
the Guarantors and the Trustee may amend or supplement this Indenture,
the Note Guarantees, or the Notes without the consent of any Holder of a
Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes or to alter the provisions of Article 2
hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(c) to provide for the assumption of the Company's or a
Guarantors obligations to the Holders of the Notes in the case of a
merger or consolidation or sale of all or substantially all of the
Company's assets pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Note; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company and each of the Guarantors,
authorizing the execution of any such amended or supplemental Indenture,
and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and each of the
Guarantors in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture
(including Sections 3.09, 4.06 and 4.07 hereof), the Note Guarantees,
and the Notes with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture, the Note Guarantees or the Notes
may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes).
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Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company and each of the Guarantors authorizing
the execution of any such amended or supplemental Indenture, and upon
the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company and each of the Guarantors in the
execution of such amended or supplemental Indenture unless such amended
or supplemental Indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of
any such amended or supplemental Indenture or waiver. Subject to
Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture
or the Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-
consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter or waive any of the provisions with respect to the
redemption of the Notes, except as provided above with respect to
Sections 3.09, 4.06 and 4.07 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and
a waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest on the Notes;
(g) waive a redemption payment with respect to any Note (other
than a payment required by the covenants contained in Sections 3.09,
4.06 or 4.07 hereof;
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(h) release any Guarantor from any of its obligations under its
Note Guarantee or this Indenture, or amend the provisions of this
Indenture relating to the release of Guarantors; or
(i) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
In addition, any amendment to the provisions of Article 10 of this
Indenture (which relate to subordination) shall require the consent of
the Holders of at least 66 2/3% in aggregate principal amount of the
Notes then outstanding if such amendment would adversely affect the
rights of Holders of Notes.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture, the Note
Guarantees, or the Notes shall be set forth in a amended or supplemental
Indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Xxxxxx's Note, even
if notation of the consent is not made on any Note. However, any such
Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective.
An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company
in exchange for all Notes may issue and the Trustee shall authenticate
new Notes (accompanied by a notation of the Note Guarantees duly
endorsed by the Guarantors) that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement
does not adversely affect the rights, duties, liabilities or immunities
of the Trustee. The Company and the Guarantors may not sign an
amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall
be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture.
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ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company and the Guarantors agree, and each Holder by accepting
a Note agrees, that the Indebtedness evidenced by the Notes is
subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full of all Senior
Debt (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.
Section 10.02. [Intentionally Omitted]
Section 10.03. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company or any Guarantor
in a liquidation or dissolution of the Company or such Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or such Guarantor or its property, in
an assignment for the benefit of creditors or any marshaling of the
Company's or such Guarantor's assets and liabilities:
(a) holders of Senior Debt shall be entitled to receive payment
in full of all Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt) before Holders of the Notes
shall be entitled to receive any payment with respect to the Notes
(except that Holders may receive (i) Permitted Junior Securities and
(ii) payments and other distributions made from any defeasance trust
created pursuant to Section 8.01 hereof); and
(b) until all Obligations with respect to Senior Debt (as
provided in subsection (i) above) are paid in full, any distribution to
which Holders would be entitled but for this Article 10 shall be made to
holders of Senior Debt (except that Holders of Notes may receive and
retain (i) Permitted Junior Securities and (ii) payments and other
distributions made from any defeasance trust created pursuant to Section
8.01 hereof), as their interests may appear.
Section 10.04. Default on Designated Senior Debt.
The Company and the Guarantors may not make any payment or
distribution to the Trustee or any Holder in respect of Obligations with
respect to the Notes and may not acquire from the Trustee or any Holder
any Notes for cash or property (other than (i) Permitted Junior
Securities and (ii) payments and other distributions made from any
defeasance trust created pursuant to Section 8.01 hereof) until all
principal and other Obligations with respect to the Senior Debt have
been paid in full if:
(a) a default in the payment of any principal, premium, if any,
or interest on Designated Senior Debt occurs and is continuing beyond
any applicable grace period in the agreement, indenture or other
document governing such Designated Senior Debt; or
(b) any other default on Designated Senior Debt occurs and is
continuing that then permits, or with the giving of notice or passage of
time or both (unless cured or waived) shall permit holders of the
Designated Senior Debt as to which such default relates to accelerate
its maturity and the Trustee receives
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a notice of the default (a "Payment Blockage Notice") from a Person who
may give it pursuant to Section 10.12 hereof. If the Trustee receives
any such Payment Blockage Notice, no subsequent Payment Blockage Notice
shall be effective for purposes of this Section unless and until at
least 365 days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that
existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been
cured or waived for a period of not less than 90 days.
The Company may and shall resume payments on and distributions in
respect of the Notes and may acquire them upon the earlier of:
(a) the date upon which the default is cured or waived, or
(b) in the case of a default referred to in Section 10.04(ii)
hereof, 179 days pass after notice is received if the maturity of such
Designated Senior Debt has not been accelerated,
if this Article 10 otherwise permits the payment, distribution or
acquisition at the time of such payment or acquisition.
Section 10.05. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 10.06. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment
of any Obligations with respect to the Notes at a time when the Trustee
or such Holder, as applicable, has actual knowledge that such payment is
prohibited by Section 10.04 hereof, such payment shall be held by the
Trustee or such Holder, in trust for the benefit of, and shall be paid
forthwith over and delivered, upon written request, to, the holders of
Senior Debt as their interests may appear or their Representative under
this Indenture or other agreement (if any) pursuant to which Senior Debt
may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Senior
Debt remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt, and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders or the Company or any other Person
money or assets to which any holders of Senior Debt shall be entitled by
virtue of this Article 10, except if such payment is made as a result of
the willful misconduct or gross negligence of the Trustee.
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Section 10.07. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent
of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article 10, but
failure to give such notice shall not affect the subordination of the
Notes to the Senior Debt as provided in this Article 10.
Section 10.08. Subrogation.
After all Senior Debt is paid in full and until the Notes are paid
in full, Holders of Notes shall be subrogated (equally and ratably with
all other Indebtedness pari passu with the Notes) to the rights of
holders of Senior Debt to receive distributions applicable to Senior
Debt to the extent that distributions otherwise payable to the Holders
of Notes have been applied to the payment of Senior Debt. A
distribution made under this Article 10 to holders of Senior Debt that
otherwise would have been made to Holders of Notes is not, as between
the Company and Holders, a payment by the Company on the Notes.
Section 10.09. Relative Rights.
This Article 10 defines the relative rights of Holders of Notes
and holders of Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(b) affect the relative rights of Holders of Notes and creditors
of the Company other than their rights in relation to holders of Senior
Debt; or
(c) prevent the Trustee or any Holder of Notes from exercising
its available remedies upon a Default or Event of Default, subject to
the rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal
of or interest on a Note on the due date, the failure is still a Default
or Event of Default.
Section 10.10. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act
or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
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Section 10.11. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company referred
to in this Article 10, the Trustee and the Holders of Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to
the Trustee or to the Holders of Notes for the purpose of ascertaining
the Persons entitled to participate in such distribution, the holders of
the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 10.
Section 10.12. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making
of any payment or distribution by the Trustee, and the Trustee and the
Paying Agent may continue to make payments on the Notes, unless a
Responsible Officer of the Trustee shall have received at its Corporate
Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any
Obligations with respect to the Notes to violate this Article 10. Only
the Company or a Representative may give the notice. Nothing in this
Article 10 shall impair the claims of, or payments to, the Trustee under
or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
Section 10.13. Authorization to Effect Subordination.
Each Holder of Notes, by the Holder's acceptance thereof,
authorizes and directs the Trustee on such Xxxxxx's behalf to take such
action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 10, and appoints the Trustee
to act as such Xxxxxx's attorney-in-fact for any and all such purposes.
If the Trustee does not file a proper proof of claim or proof of debt in
the form required in any proceeding referred to in Section 6.09 hereof
at least 30 days before the expiration of the time to file such claim,
the Representative of the Designated Senior Debt are hereby authorized
to file an appropriate claim for and on behalf of the Holders of the
Notes.
Section 10.14. Amendments.
The provisions of this Article 10 shall not be amended or modified
without the written consent of the holders of all Senior Debt.
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ARTICLE 11
GUARANTEES
Section 11.01. Note Guarantees.
Subject to the provisions of this Article 11, each of the
Guarantors hereby, jointly and severally, unconditionally guarantee to
each Holder of a Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that: (a) the principal of, premium
and Liquidated Damages, if any, and interest on the Notes shall be
promptly paid in full when due, whether at the maturity or interest
payment or mandatory redemption date, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium and
Liquidated Damages, if any, and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the
Trustee under this Indenture and the Notes shall be promptly paid in
full or performed, all in accordance with the terms of this Indenture
and the Notes; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same shall
be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately. The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence
of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions of this Indenture and the
Notes, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that
the Guarantees shall not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise
to return to the Company or Guarantors, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the
Company or Guarantors, any amount paid by either to the Trustee or such
Holder, these Guarantees, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that they
shall not be entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x)
the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 6 hereof for the purposes of these Guarantees,
notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such obligations
as provided in Article 6 hereof, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantors
for the purpose of these Guarantees. The Guarantors shall have the right
to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under
these Guarantees.
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Section 11.02. Limitation of Guarantor's Liability.
Each Guarantor and, by its acceptance hereof, each Holder hereof,
hereby confirm that it is their intention that the Note Guarantee by
such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar federal or state law
to the extent applicable to the Note Guarantees. To effectuate the
foregoing intention, each such person hereby irrevocably agrees that the
obligation of such Guarantor under its Note Guarantee under this Article
11 shall be limited to the maximum amount as shall, after giving effect
to such maximum amount and all other (contingent or otherwise)
liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any rights to contribution of such Guarantor
pursuant to any agreement providing for an equitable contribution among
such Guarantor and other Affiliates of the Company of payments made by
guarantees by such parties, result in the obligations of such Guarantor
in respect of such maximum amount not constituting a fraudulent
conveyance. Each Holder, by accepting the benefits hereof, confirms its
intention that, in the event of bankruptcy, reorganization or other
similar proceeding of the Company or any Guarantor in which concurrent
claims are made upon such Guarantor hereunder, to the extent such claims
shall not be fully satisfied, each such claimant with a valid claim
against the Company shall be entitled to a ratable share of all payments
by such Guarantor in respect of such concurrent claims.
Section 11.03. Execution and Delivery of Note Guarantees.
To evidence the Note Guarantees set forth in Section 11.01 hereof,
each Guarantor hereby agrees that a notation of the Note Guarantees
substantially in the form of Exhibit D shall be endorsed by an officer
of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of such
Guarantor by its President or one of its Vice Presidents and attested to
by an Officer.
Each Guarantor hereby agrees that the Note Guarantees set forth in
Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of the Note Guarantees.
If an officer or Officer whose signature is on this Indenture or
on the Note Guarantees no longer holds that office at the time the
Trustee authenticates the Note on which the Note Guarantees are
endorsed, the Note Guarantees shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantees
set forth in this Indenture on behalf of the Guarantors.
Section 11.04. Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or shall
prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety, to the Company.
(b) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into a corporation or
corporations other than the Company (whether or not affiliated with the
Guarantor), or successive
75
consolidations or mergers in which a Guarantor or its successor or
successors shall be a party or parties, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or
substantially as an entirety, to a corporation other than the Company
(whether or not affiliated with the Guarantor) authorized to acquire and
operate the same; provided, however, that such transaction meets all of
the following requirements: (i) each Guarantor hereby covenants and
agrees that, upon any such consolidation, merger, sale or conveyance,
the Note Guarantee endorsed on the Notes, and the due and punctual
performance and observance of all of the covenants and conditions of
this Indenture to be performed by such Guarantor, shall be expressly
assumed (in the event that the Guarantor is not the surviving
corporation in the merger), by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee, by the
corporation formed by such consolidation, or into which the Guarantor
shall have been merged, or by the corporation which shall have acquired
such property, (ii) immediately after giving effect to such transaction,
no Default or Event of Default exists; and (iii) the Company would be
permitted by virtue of the Company's pro forma Fixed Charge Coverage
Ratio, immediately after giving effect to such transaction, to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage ratio test set for in Section 4.09(a) hereof. In case of any
such consolidation, merger, sale or conveyance and upon the assumption
by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Note Guarantees endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to
be performed by the Guarantor, such successor corporation shall succeed
to and be substituted for the Guarantor with the same effect as if it
had been named herein as a Guarantor. Such successor corporation
thereupon may cause to be signed any or all of the Guaranties to be
endorsed upon all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee.
All the Guaranties so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guaranties theretofore and
thereafter issued in accordance with the terms of this Indenture as
though all of such Guaranties had been issued at the date of the
execution hereof.
Section 11.05. Releases Following Sale of Assets.
Concurrently with any sale of assets (including, if applicable,
all of the capital stock of any Guarantor), any Liens in favor of the
Trustee in the assets sold thereby shall be released; provided that in
the event of an Asset Sale, the Net Proceeds from such sale or other
disposition are treated in accordance with the provisions of Section
4.07 hereof. The Note Guarantee or the obligations under Section 11.04
hereof of a Guarantor that is a subsidiary will be released (i) in
connection with any sale or other disposition of all or substantially
all of the assets of such Guarantor (including by way of merger or
consolidation), if the Company applies the Net Proceeds of that sale or
other disposition in accordance with Section 4.07 hereof, or (ii) in
connection with the sale of all of the capital stock of a Guarantor that
is a subsidiary, if the Company applies the Net Proceeds of that sale in
accordance with Section 4.07 hereof. Upon delivery by the Company to the
Trustee of an Officers' Certificate to the effect that such sale or
other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.07
hereof, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations
under its Note Guarantees. Any Guarantor not released from its
obligations under its Note Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this
Article 11.
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Section 11.06. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 11 shall in such case (unless the
context shall otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully and for all
intents and purposes as if such Paying Agent were named in this Article
11 in place of the Trustee.
Section 11.07. Subordination of Note Guarantees.
The obligations of each Guarantor under its Note Guarantee
pursuant to this Article 11 shall be junior and subordinated to the
prior payment in full of all Senior Debt of such Guarantor and the
amounts for which the Guarantors shall be liable under the guarantees
issued from time to time with respect to Senior Debt on the same basis
as the Notes are junior and subordinated to Senior Debt. For the
purposes of the foregoing sentence, the Trustee and the Holders shall
have the right to receive and/or retain payments by any of the
Guarantors only at such times as they may receive and/or retain payments
in respect of the Notes pursuant to this Indenture, including Article 11
hereof.
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge.
This Indenture shall upon the request of the Company cease to be
of further effect (except as to surviving rights of registration of
transfer or exchange of Notes herein expressly provided for, the
Company's obligations under Section 7.07 hereof, and the Trustee's and
the Paying Agent's obligations under Section 12.02 hereof) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(a) either
(i) all Notes therefore authenticated and delivered
(other than (A) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.07 and (B) Notes for whose payment money has been
deposited in trust with the Trustee or any Paying Agent and
thereafter paid to the Company or discharged from such
trust) have been delivered to the Trustee for cancellation;
or
(ii) all such Notes not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable; or
(B) shall become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in
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the name, and at the expense, of the Company, and the
Company, in the case of clause (A), (B) or (C) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose money or
Government Securities in an amount sufficient (as certified
by an independent public accountant designated by the
Company) to pay and discharge the entire indebtedness of
such Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case
of Notes which have become due and payable) or the Stated
Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
then due and payable hereunder by the Company;
(c) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit and
after giving effect to such deposit; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the Company's obligations in Sections 2.03, 2.04, 2.06, 2.07, 2.11,
7.07, 7.08, 12.02, 12.03 and 12.04, and the Trustee's and Paying Agent's
obligations in Section 12.02 shall survive until the Notes are no longer
outstanding. Thereafter, only the Company's obligations in Section 7.07
shall survive.
In order to have money available on a payment date to pay
principal (and premium, if any, on) or interest on the Notes, the
Government Securities shall be payable as to principal (and premium, if
any) or interest at least one Business Day before such payment date in
such amounts as shall provide the necessary money. Government
Securities shall not be callable at the issuer's option.
Section 12.02. Application of Trust.
All money deposited with the Trustee pursuant to Section 12.01
shall be held in trust and, at the written direction of the Company, be
invested prior to maturity in U.S. Government Obligations, and applied
by the Trustee in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for the payment of which
money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
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ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control.
Section 13.02. Notices.
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company or any Guarantor:
Mail-Well I Corporation
c/o Mail-Well, Inc.
00 Xxxxxxxxx Xxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxxxxxxx Xxxxxxx & Xxxxx LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx XXX
If to the Trustee:
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Division: Mail-Well I Corporation
The Company, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices
or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day
delivery.
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Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address
shown on the register kept by the Registrar. Any notice or communication
shall also be so mailed to any Person described in TIA Section 313(c),
to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 13.03. Communication by Holders of Notes with Other Holders
of Notes.
The Trustee is subject to TIA Section 312(b), and Holders may
communicate pursuant thereto with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Guarantors,
the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture, the Company or such
Guarantors shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply
with the provisions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
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(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 13.07. No Personal Liability of Directors, Officers, Employees
and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such,
shall have any liability for any obligations of the Company or any
Guarantor under the Notes, this Indenture or the Note Guarantees or for
any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration
for issuance of the Notes.
Section 13.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
Section 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture or the Note Guarantees.
Section 13.10. Successors.
All agreements of the Company and the Guarantors in this
Indenture, the Notes and the Note Guarantees shall bind its successors.
All agreements of the Trustee in this Indenture shall bind their
respective successors.
Section 13.11. Severability.
In case any provision in this Indenture, the Notes or the Note
Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
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Section 13.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
Section 13.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
[Signatures on following page]
82
IN WITNESS WHEREOF, the parties have executed this Indenture as of
the date first written above.
MAIL-WELL I CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
EACH ENTITY LISTED ON SCHEDULE A
HERETO
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President, General Counsel and
Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxx X. Xx
------------------------------------------
Name: Xxx X. Xx
Title: Assistant Vice President
83
SCHEDULE A
----------
SCHEDULE OF GUARANTORS
Xxxxxxxx Lithograph Company
Xxxxxxxxx-Xxxxx, Inc.
Xxxxxxx, Inc.
Denver Forms Company
Digital X-Press, Inc.
Xxxxx Packaging, Inc.
Graphics Arts Center, Inc.
Graphics Illustrated, Inc.
Xxxxxxx Envelope, Inc.
Imperial Litho and Dryography, Inc.
Xxxx X. Xxxxx Printing Co.
Mail-Well Commercial Printing, Inc.
Mail-Well Canada Holdings, Inc.
Mail-Well, Inc. (the Parent Company)
Mail-Well Label Holdings, Inc.
Mail-Well Label USA, Inc.
Mail-Well West, Inc.
Xxxxxx Envelope Holdings, Inc.
Xxxxxx Envelope Corporation
N-M Envelope, Inc.
National Graphics Company
Poser Business Forms, Inc.
Production Press, Inc.
Xxxxxxxx'x Printing of Colorado, LLC
Xxxxxxx Printing, Inc.
Wisco II, L.L.C.
Wisco Envelope Corp.
