1
Exhibit 4.1
INDENTURE
DATED AS OF JULY 1, 1998
AMONG
GENERAC PORTABLE PRODUCTS, LLC
AND
GPPW, INC.,
AS ISSUERS,
AND
MARINE MIDLAND BANK,
AS TRUSTEE
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UP TO $160,000,000 AGGREGATE PRINCIPAL AMOUNT OF
11 1/4% SENIOR SUBORDINATED NOTES DUE 2006
2
CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
----------- -------
Section 310(a)(1)............................................. 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.08, 7.10.
(b)..................................................... 7.08; 7.10; 13.02
(c)..................................................... N.A.
Section 311(a)................................................ 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
Section 312(a)................................................ 2.05
(b)..................................................... 13.03
(c)..................................................... 13.03
Section 313(a)................................................ 7.06
(b)(1).................................................. 7.06
(b)(2).................................................. 7.06
(c)..................................................... 7.06; 13.02
(d)..................................................... 7.06
Section 314(a)................................................ 4.11; 4.12; 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.
Section 315(a)................................................ 7.01(b)
(b)..................................................... 7.05; 13.02
(c)..................................................... 7.01(a)
(d)..................................................... 7.01(c)
(e)..................................................... 6.11
Section 316(a)(last sentence)................................. 2.09
(a)(1)(A)............................................... 6.05
(a)(1)(B)............................................... 6.04
(a)(2).................................................. N.A.
(b)..................................................... 6.07
(c)..................................................... 10.04
Section 317(a)(1)............................................. 6.08
(a)(2).................................................. 6.09
(b)..................................................... 2.04
Section 318(a)................................................ 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.....................................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act..............................................18
SECTION 1.03. Rules of Construction..........................................................................18
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating................................................................................19
SECTION 2.02. Execution and Authentication...................................................................19
SECTION 2.03. Registrar and Paying Agent.....................................................................20
SECTION 2.04. Paying Agent To Hold Assets in Trust...........................................................21
SECTION 2.05. Holder Lists...................................................................................21
SECTION 2.06. Transfer and Exchange..........................................................................21
SECTION 2.07. Replacement Notes..............................................................................22
SECTION 2.08. Outstanding Notes..............................................................................22
SECTION 2.09. Treasury Notes.................................................................................23
SECTION 2.10. Temporary Notes................................................................................23
SECTION 2.11. Cancellation...................................................................................23
SECTION 2.12. Defaulted Interest.............................................................................24
SECTION 2.13. CUSIP Number...................................................................................24
SECTION 2.14. Deposit of Moneys..............................................................................24
SECTION 2.15. Book-Entry Provisions for Global Notes.........................................................24
SECTION 2.16. Registration of Transfers and Exchanges........................................................25
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.............................................................................29
SECTION 3.02. Selection of Notes To Be Redeemed..............................................................29
SECTION 3.03. Notice of Redemption...........................................................................29
SECTION 3.04. Effect of Notice of Redemption.................................................................30
SECTION 3.05. Deposit of Redemption Price....................................................................30
SECTION 3.06. Notes Redeemed in Part.........................................................................31
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes...............................................................................31
SECTION 4.02. Maintenance of Office or Agency................................................................31
SECTION 4.03. Limitations on Transactions with Affiliates....................................................31
SECTION 4.04. Limitation on Incurrence of Additional Indebtedness............................................32
SECTION 4.05. Limitation on Asset Sales......................................................................32
SECTION 4.06. Limitation on Restricted Payments..............................................................35
SECTION 4.07. Compliance with Laws...........................................................................36
SECTION 4.08. Payment of Taxes and Other Claims..............................................................36
SECTION 4.09. Notice of Defaults.............................................................................37
SECTION 4.10. Maintenance of Properties and Insurance........................................................37
SECTION 4.11. Compliance Certificate.........................................................................37
SECTION 4.12. Reports to Holders.............................................................................38
SECTION 4.13. Waiver of Stay, Extension or Usury Laws........................................................38
SECTION 4.14. Change of Control..............................................................................38
SECTION 4.15. Prohibition on Incurrence of Senior Subordinated Debt..........................................40
SECTION 4.16. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries...................40
SECTION 4.17. Limitation on Preferred Stock of Restricted Subsidiaries.......................................40
SECTION 4.18. Limitation on Liens............................................................................40
SECTION 4.19. Limitation of Guarantees by Restricted Subsidiaries............................................41
SECTION 4.20. Conduct of Business of the Company and the Co-Issuer...........................................41
ARTICLE FIVE
MERGERS; SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets.......................................................42
SECTION 5.02. Successor Substituted..........................................................................43
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default..............................................................................43
SECTION 6.02. Acceleration...................................................................................44
SECTION 6.03. Other Remedies.................................................................................45
SECTION 6.04. Waiver of Past Default.........................................................................45
SECTION 6.05. Control by Majority............................................................................45
SECTION 6.06. Limitation on Suits............................................................................45
SECTION 6.07. Rights of Holders To Receive Payment...........................................................46
SECTION 6.08. Collection Suit by Trustee.....................................................................46
SECTION 6.09. Trustee May File Proofs of Claim...............................................................46
SECTION 6.10. Priorities.....................................................................................47
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SECTION 6.11. Undertaking for Costs..........................................................................47
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee..............................................................................47
SECTION 7.02. Rights of Trustee and Agents...................................................................48
SECTION 7.03. Individual Rights of Trustee...................................................................49
SECTION 7.04. Trustee's Disclaimer...........................................................................49
SECTION 7.05. Notice of Defaults.............................................................................50
SECTION 7.06. Reports by Trustee to Holders..................................................................50
SECTION 7.07. Compensation and Indemnity.....................................................................50
SECTION 7.08. Replacement of Trustee.........................................................................51
SECTION 7.09. Successor Trustee by Merger, etc...............................................................52
SECTION 7.10. Eligibility; Disqualification..................................................................52
SECTION 7.11. Preferential Collection of Claims Against Issuers..............................................52
ARTICLE EIGHT
SUBORDINATION OF NOTES
SECTION 8.01. Notes Subordinated to Senior Debt..............................................................53
SECTION 8.02. No Payment on Notes in Certain Circumstances...................................................53
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.................................................54
SECTION 8.04. Subrogation....................................................................................55
SECTION 8.05. Obligations of Issuers Unconditional...........................................................55
SECTION 8.06. Notice to Trustee and Paying Agent.............................................................55
SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating Agent.................................56
SECTION 8.08. Trustee's Relation to Senior Debt..............................................................56
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of the Issuers or Holders
of Senior Debt........................................................................57
SECTION 8.10. Holders Authorize Trustee To Effectuate Subordination of Notes.................................57
SECTION 8.11. This Article Not To Prevent Events of Default..................................................57
SECTION 8.12. Trustee's Compensation Not Prejudiced..........................................................57
SECTION 8.13. No Waiver of Subordination Provisions..........................................................57
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in Trust for Holders.....................58
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Termination of the Issuers' Obligations........................................................58
SECTION 9.02. Legal Defeasance and Covenant Defeasance.......................................................59
SECTION 9.03. Conditions to Legal Defeasance or Covenant Defeasance..........................................60
SECTION 9.04. Application of Trust Money.....................................................................61
SECTION 9.05. Repayment to Issuers...........................................................................62
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SECTION 9.06. Reinstatement..................................................................................62
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders....................................................................62
SECTION 10.02. With Consent of Holders.......................................................................63
SECTION 10.03. Compliance with Trust Indenture Act...........................................................64
SECTION 10.04. Revocation and Effect of Consents.............................................................64
SECTION 10.05. Notation on or Exchange of Notes..............................................................65
SECTION 10.06. Trustee To Sign Amendments, etc...............................................................65
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.......................................................................65
SECTION 11.02. Severability..................................................................................66
SECTION 11.03. Limitation of Guarantor's Liability...........................................................66
SECTION 11.04. Execution of Guarantee........................................................................66
SECTION 11.05. Subordination of Subrogation and Other Rights.................................................67
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated to Senior Debt.............................................67
SECTION 12.02. No Payment in Certain Circumstances; Payment Over of Proceeds upon Dissolution, etc...........67
SECTION 12.03. Subrogation...................................................................................69
SECTION 12.04. Obligations of Guarantors Unconditional.......................................................69
SECTION 12.05. Notice to Trustee and Paying Agent............................................................70
SECTION 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent................................70
SECTION 12.07. Trustee's Relation to Senior Debt of a Guarantor..............................................70
SECTION 12.08. Subordination Rights Not Impaired by Acts or Omissions of Holders of Senior Debt.............71
SECTION 12.09. Holders Authorize Trustee To Effectuate Subordination of Guarantee............................71
SECTION 12.10. This Article Not To Prevent Events of Default.................................................71
SECTION 12.11. Trustee's Compensation Not Prejudiced.........................................................71
SECTION 12.12. No Waiver of Guarantee Subordination Provisions...............................................71
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls..................................................................72
SECTION 13.02. Notices.......................................................................................72
SECTION 13.03. Communications by Holders with Other Holders..................................................74
SECTION 13.04. Certificate and Opinion as to Conditions Precedent............................................74
SECTION 13.05. Statements Required in Certificate or Opinion.................................................74
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.....................................................75
SECTION 13.07. Governing Law.................................................................................75
SECTION 13.08. No Recourse Against Others....................................................................75
SECTION 13.09. Successors....................................................................................75
SECTION 13.10. Counterpart Originals.........................................................................75
SECTION 13.11. Severability..................................................................................75
SECTION 13.12. No Adverse Interpretation of Other Agreements.................................................75
SECTION 13.13. Legal Holidays................................................................................75
SIGNATURES..................................................................................................S-1
EXHIBIT A Form of Series A Note.....................................................................A-1
EXHIBIT B Form of Series B Note.....................................................................B-1
EXHIBIT C Form of Legend for Global Notes...........................................................C-1
EXHIBIT D Form of Transfer Certificate..............................................................D-1
EXHIBIT E Form of Transfer Certificate for Institutional Accredited Investors.......................E-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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8
INDENTURE dated as of July 1, 1998, among GENERAC PORTABLE
PRODUCTS, LLC, a Delaware limited liability company (the "Company"), GPPW, INC.,
a Wisconsin corporation ("Co-Issuer" and together with the Company the
"Issuers"), as issuers, and MARINE MIDLAND BANK, a New York banking corporation
and trust company, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Subsidiaries or assumed in connection with the acquisition
of assets from such Person and in each case not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Additional Interest" has the meaning provided in the
Registration Rights Agreement.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Affiliate Transaction" see Section 4.03.
"Agent" means any Registrar, Paying Agent, Authenticating
Agent or co-Registrar.
"Asset Acquisition" means (a) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (b) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
Person (other than a Restricted Subsidiary of the Company) which constitute all
or substantially all of the assets of such Person or comprise any division or
line of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted Subsidiary
of the Company; or (b) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that Asset Sales
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shall not include (i) a transaction or series of related transactions for which
the Company or its Restricted Subsidiaries receive aggregate consideration of
less than $1,000,000 or (ii) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
under Section 5.01.
"Authenticating Agent" means the Agent appointed to
authenticate the Notes pursuant to Section 2.02.
"Bankruptcy Law" see Section 6.01.
"Beacon" means The Beacon Group III--Focus Value Fund, L.P., a
limited partnership organized under the laws of the State of Delaware.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means a day that is not a Saturday, a Sunday or
a day on which banking institutions in New York, New York are not required to be
open.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests conferring to the holder thereof the right
to receive a share of the profits, losses or distributions of assets of such
Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Ratings Group ("S&P")
or Xxxxx'x Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing
no more than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit, time deposits, eurodollar time deposits
or bankers' acceptances maturing within one year from the date of acquisition
thereof and overnight bank deposits issued by any bank organized under the laws
of the United States of America or any state thereof or the District of Columbia
or any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (i) and (iv) above entered into with any bank
meeting the
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qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company or Holdings to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a "Group"), together with any
Affiliates thereof (whether or not otherwise in compliance with the provisions
of this Indenture) other than to the Permitted Holders; (ii) the approval by the
holders of Capital Stock of the Company or Holdings of any plan or proposal for
the liquidation or dissolution of the Company or Holdings, as the case may be,
(whether or not otherwise in compliance with the provisions of this Indenture);
(iii) any Person or Group (other than the Permitted Holders) shall become the
owner, directly or indirectly, beneficially or of record, of shares representing
more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of the Company or Holdings; or (iv) the
replacement of a majority of the Board of Directors of the Company or Holdings
over a two-year period from the directors who constituted the Board of Directors
of the Company or Holdings, as the case may be, at the beginning of such period,
and such replacement shall not have been approved by a vote of at least a
majority of the Board of Directors of the Company or Holdings, as the case may
be, then still in office who either were members of such Board of Directors at
the beginning of such period or whose election as a member of such Board of
Directors was previously so approved.
"Change of Control Payment Date" see Section 4.14(c).
"Co-Issuer" means GPPW, Inc., a corporation incorporated under
the laws of the State of Wisconsin.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A) all
income taxes of such Person and its Restricted Subsidiaries, or Permitted Tax
Distributions made by such Person, paid or accrued in accordance with GAAP for
such period (other than income taxes attributable to extraordinary, unusual or
nonrecurring gains or losses or taxes attributable to sales or dispositions
outside the ordinary course of business); (B) Consolidated Interest Expense; and
(C) Consolidated Non-cash Charges less any non-cash items increasing
Consolidated Net Income for such period, all as determined on a consolidated
basis for such Person and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the date
of the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA"
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and "Consolidated Fixed Charges" shall be calculated after giving effect on a
pro forma basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period and (ii) any
asset sales or other dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA (including any pro forma
expense and cost reductions calculated on a basis consistent with Regulation S-X
of the Exchange Act) attributable to the assets which are the subject of the
Asset Acquisition or asset sale or other disposition during the Four Quarter
Period) occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction Date,
as if such asset sale or other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness) occurred
on the first day of the Four Quarter Period. If such Person or any of its
Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such
Person had directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date and (2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Swap Obligations, shall be deemed to accrue at
the rate per annum resulting after giving effect to the operation of such
agreements.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense, plus (ii) the product of (x) the amount of all dividend payments on any
series of Preferred Stock of such Person (other than dividends paid in Qualified
Capital Stock) paid, accrued or scheduled to be paid or accrued during such
period times (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated federal, state and
local tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication: (i) the aggregate of the
interest expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including without
limitation, (a) any amortization of debt discount and amortization or write-off
of deferred financing costs; (b) the net costs under Interest Swap Obligations,
(c) all capitalized interest and (d) the interest portion of any deferred
payment obligation; and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded therefrom (a) the
amount of Permitted
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Tax Distributions with respect to such period; (b) after-tax gains from Asset
Sales or abandonments or reserves relating thereto; (c) after-tax items
classified as extraordinary or nonrecurring gains; (d) the net income of any
Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of the
referent Person; (e) the net income (but not loss) of any Restricted Subsidiary
of the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by a contract, operation of law or otherwise; (f) the net income of any Person,
other than a Restricted Subsidiary of the referent Person, except to the extent
of cash dividends or distributions paid to the referent Person or to a Wholly
Owned Restricted Subsidiary of the referent Person by such Person; (g) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date; (h) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued); and (i) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charges constituting an extraordinary item or loss or any such charge
which requires an accrual of or a reserve for cash charges for any future
period).
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 or such other address as the
Trustee may give notice to the Company.
"Credit Agreement" means the Credit Agreement dated as of July
9, 1998, among the Company, Holdings, the lenders party thereto in their
capacities as lenders thereunder and Bankers Trust Company, as administrative
agent, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder (provided that such increase in borrowings is permitted by Section
4.04 hereunder) or adding Restricted Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness under
such agreement or any successor or replacement agreement and whether by the same
or any other agent, lender or group of lenders.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Custodian" see Section 6.01.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
13
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"Defeasance Trust Payment" see Section 8.01.
"Depositary" means, with respect to the Notes issued in the
form of one or more Global Notes, DTC or another Person designated as Depositary
by the Company, which must be a clearing agency registered under the Exchange
Act.
"Designated Senior Debt" means (i) Indebtedness under or in
respect of the Credit Agreement and (ii) any other Indebtedness constituting
Senior Debt which, at the time of determination, has an aggregate principal
amount of at least $25.0 million and is specifically designated in the
instrument evidencing such Senior Debt as "Designated Senior Debt" by the
Company in an Officers' Certificate executed by the principal Executive Officer
and principal Financial Officer of the Company.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the final maturity date of the Notes.
"DTC" means The Depository Trust Company.
"Event of Default" see Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the 11 1/4% Senior Subordinated Notes
due 2006, Series B, to be issued in exchange for the Initial Notes pursuant to
the Registration Rights Agreement.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors of
the Company acting reasonably and in good faith and shall be evidenced by a
Board Resolution of the Board of Directors of the Company delivered to the
Trustee.
"Final Maturity Date" means July 1, 2006.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary of the Company that is not organized under the laws of the United
States of America or any State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Global Notes" means one or more IAI Global Notes, Reg. S
Global Notes and 144A Global Notes.
00
-0-
"xxxxxxxxx" 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, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness or other obligations.
"Guarantee" has the meaning given such term in Section 4.19.
"Guarantor" means each of the Company's Restricted
Subsidiaries that in the future executes a supplemental Indenture in which such
Restricted Subsidiary agrees to be bound by the terms of this Indenture as a
Guarantor; provided that any Person constituting a Guarantor as described above
shall cease to constitute a Guarantor when its respective Guarantee is released
in accordance with the terms of this Indenture.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) currency exchange or interest rate swap
agreements, currency exchange or interest rate cap agreements and currency
exchange or interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in currency
exchange or interest rates or commodity prices.
"Holder" means the registered holder of any Note.
"Holdings" means Generac Portable Products, Inc., a
corporation incorporated under the laws of the State of Delaware.
"IAI Global Note" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold to Institutional
Accredited Investors.
"incur" see Section 4.04.
"Indebtedness" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money; (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments; (iii) all Capitalized Lease Obligations of such Person;
(iv) all Obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all Obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business that are not
overdue by 90 days or more or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted); (v) all Obligations
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (vi) guarantees and other contingent
obligations in respect of Indebtedness referred to in clauses (i) through (v)
above and clause (viii) below; (vii) all Obligations of any other Person of the
type referred to in clauses (i) through (vi) which are secured by any lien on
any property or asset of such Person, the amount of such Obligation being deemed
to be the lesser of the fair market value of such property or asset or the
amount of the Obligation so secured; (viii) all Obligations under currency
agreements and interest swap agreements of such Person; and (ix) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any. For purposes hereof, the
"maximum fixed repurchase price" of any Disqualified Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock as if such Disqualified Capital Stock
were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such
15
-8-
fair market value shall be determined reasonably and in good faith by the Board
of Directors of the issuer of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Independent Financial Advisor" means a firm (i) which does
not, and whose directors, officers and employees or Affiliates do not, have a
direct or indirect financial interest in the Company and (ii) which, in the
judgment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Initial Notes" means the 11 1/4% Senior Subordinated Notes
due 2006, Series A, of the Issuers.
"Initial Purchaser" means BT Alex. Xxxxx Incorporated.
"Insolvency or Liquidation Proceeding" means, with respect to
any Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"interest" means, with respect to any Notes, the sum of any
cash interest and any Additional Interest on such Notes.
"Interest Payment Date" means each semiannual interest payment
date on January 1 and July 1 of each year, commencing January 1, 1999.
"Interest Record Date" for the interest payable on any
Interest Payment Date (except a date for payment of defaulted interest) means
the June 15 or December 15 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.
"Interest Swap Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit by
the Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. For the purposes of Section 4.06, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary and shall exclude the fair
16
-9-
market value of the net assets of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; provided that no such
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, 100% of the
outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Issue Date" means July 9, 1998.
"Issuers" means the Company and Co-Issuer.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale
and (d) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Net Proceeds Offer" see Section 4.05.
"Net Proceeds Offer Amount" see Section 4.05.
"Net Proceeds Offer Payment Date" see Section 4.05.
"Net Proceeds Offer Trigger Date" see Section 4.05.
"Notes" means, collectively, the Initial Notes, the Private
Exchange Notes and the Unrestricted Notes treated as a single class of Notes, as
amended or supplemented from time to time in accordance with the terms of this
Indenture.
17
-10-
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnification, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering" means the offer and sale of the $110,000,000
aggregate principal amount of Initial Notes to the Initial Purchaser on the
Issue Date.
"Officer" of any Person means the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice President
(whether or not such title is preceded or followed by one or more words or
phrases), the Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of such Person.
"Officers' Certificate" of any Person means a certificate
signed on behalf of such Person or the general partner, in the case of a limited
partnership, or member, in the case of a limited liability company, of such
Person by the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President (whether or not such title is
preceded or followed by one or more words or phrases) and by the Treasurer or
any Assistant Treasurer or the Secretary or any Assistant Secretary of such
Person, that meets the requirements set forth in Sections 13.04 and 13.05 of
this Indenture.
"144A Global Note" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold in reliance on
Rule 144A.
"Operating Company" or "Company" means Generac Portable
Products, LLC, a limited liability company organized under the laws of the State
of Delaware.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Issuers or the Trustee.
"Pari Passu Indebtedness" means with respect to the Notes or a
Guarantee, Indebtedness which ranks pari passu in right of payment to the Notes
or such Guarantee, as the case may be.
"Participant" has the meaning set forth in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Payment Blockage Notice" see Section 8.02.
"Payment Blockage Period" see Section 8.02.
"Permitted Holder(s)" means Beacon and its Affiliates.
"Permitted Indebtedness" means, without duplication, each of
the following:
(i) Indebtedness under the Notes issued in the Offering in an
aggregate amount of $110.0 million;
(ii) Indebtedness incurred pursuant to the Credit Agreement in
an aggregate outstanding principal amount at any time outstanding not
to exceed $115.0 million (A) less the amount of all mandatory principal
payments actually made in respect of the term loans thereunder and (B)
reduced by any
18
-11-
required permanent repayments (which are accompanied by a corresponding
permanent commitment reduction) thereunder, in each case, actually
effected in satisfaction of the Net Cash Proceeds requirement of
Section 4.05 (it being recognized that a reduction in any borrowing
base thereunder in and of itself shall not be deemed a required
permanent repayment);
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions thereon;
(iv) Interest Swap Obligations of the Company covering
Indebtedness of Holdings, the Company or any of its Restricted
Subsidiaries and Interest Swap Obligations of any Restricted Subsidiary
of the Company covering Indebtedness of such Restricted Subsidiary;
provided, however, that such Interest Swap Obligations are entered into
to protect the Company and its Restricted Subsidiaries from
fluctuations in interest rates on Indebtedness incurred in accordance
with this Indenture to the extent the notional principal amount of such
Interest Swap Obligation does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligation relates;
(v) Indebtedness under Currency Agreements; provided that in
the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and
its Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted Subsidiary of
the Company to the Company or to a Wholly Owned Restricted Subsidiary
of the Company for so long as such Indebtedness is held by the Company
or a Wholly Owned Restricted Subsidiary of the Company, in each case
subject to no Lien held by a Person other than the Company or a Wholly
Owned Restricted Subsidiary of the Company or the lenders and
collateral agent under the Credit Agreement; provided that if as of any
date any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company or the lenders and collateral agent under the
Credit Agreement owns or holds any such Indebtedness or holds a Lien in
respect of such Indebtedness, such date shall be deemed the incurrence
of Indebtedness not constituting Permitted Indebtedness by the issuer
of such Indebtedness unless such Indebtedness is otherwise permitted
hereunder;
(vii) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Wholly Owned Restricted Subsidiary of the Company or the lenders and
collateral agent under the Credit Agreement, in each case subject to no
Lien other than under the Credit Agreement; provided that (a) any
Indebtedness of the Company to any Wholly Owned Restricted Subsidiary
of the Company is unsecured and subordinated, pursuant to a written
agreement, to the Company's obligations under this Indenture and the
Notes and (b) if as of any date any Person other than a Wholly Owned
Restricted Subsidiary of the Company owns or holds any such
Indebtedness or any Person holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness by the Company unless such
Indebtedness is otherwise permitted hereunder;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two business
days of incurrence;
(ix) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, in order
19
-12-
to provide security for workers' compensation claims, payment
obligations in connection with self-insurance or similar requirements
in the ordinary course of business;
(x) Indebtedness represented by Capitalized Lease Obligations
and Purchase Money Indebtedness of the Company and its Restricted
Subsidiaries incurred in the ordinary course of business not to exceed
$7.5 million at any one time outstanding;
(xi) Refinancing Indebtedness;
(xii) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to exceed
$20.0 million at any one time outstanding; and
(xiii) Indebtedness of Foreign Restricted Subsidiaries not to
exceed $10.0 million at any one time outstanding; provided that no
Indebtedness may be incurred under this clause (xiii) if after giving
effect to such incurrence the sum of the Indebtedness outstanding under
clause (ii) above and the Indebtedness outstanding under this clause
(xiii) would exceed the maximum amount of Indebtedness permitted to be
outstanding under clause (ii) above.
"Permitted Investments" means (i) Investments by the Company
or any Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Wholly Owned Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Wholly Owned
Restricted Subsidiary of the Company; (ii) Investments in the Company by any
Restricted Subsidiary of the Company; provided that any Indebtedness evidencing
such Investment is unsecured and subordinated, pursuant to a written agreement,
to the Company's obligations under the Notes and this Indenture; (iii)
investments in cash and Cash Equivalents; (iv) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of $1.0 million
at any one time outstanding; (v) Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture; (vi) additional Investments not to exceed $7.5 million at any one
time outstanding; (vii) Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers; and
(viii) Investments made by the Company or its Restricted Subsidiaries as a
result of consideration received in connection with an Asset Sale made in
compliance with Section 4.05.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(ii) 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, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
20
-13-
(iv) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized
Lease Obligation; provided that such Liens do not extend to any
property or assets which is not leased property subject to such
Capitalized Lease Obligation;
(vii) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary of the Company acquired in the
ordinary course of business; provided, however, that (A) the related
Purchase Money Indebtedness shall not exceed the cost of such property
or assets and shall not be secured by any property or assets of the
Company or any Restricted Subsidiary of the Company other than the
property and assets so acquired and (B) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(viii) 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;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(x) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off;
(xi) Liens securing Interest Swap Obligations which Interest
Swap Obligations relate to Indebtedness that is otherwise permitted
under this Indenture;
(xii) Liens securing Capitalized Lease Obligations and Purchase
Money Indebtedness permitted pursuant to clause (x) of the definition
of "Permitted Indebtedness"; provided, however, that in the case of
Purchase Money Indebtedness (A) the Indebtedness shall not exceed the
cost of such property or assets and shall not be secured by any
property or assets of the Company or any Restricted Subsidiary of the
Company other than the property and assets so acquired or constructed
and (B) the Lien securing such Indebtedness shall be created within 180
days of such acquisition or construction or, in the case of a
refinancing of any Purchase Money Indebtedness, within 180 days of such
refinancing;
(xiii) Liens securing Indebtedness under Currency Agreements;
and
(xiv) Liens securing Acquired Indebtedness incurred in
accordance with Section 4.04; provided that (A) such Liens secured such
Acquired Indebtedness at the time of and prior to the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary of
the Company and were not granted in connection with, or in anticipation
of, the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and (B) such Liens do not extend
to or cover any property or assets of the Company or of any of its
Restricted Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of the Company or a Restricted Subsidiary of the
Company and are no more favorable to the
21
-14-
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company.
"Permitted Tax Distributions" see Section 4.06.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental
agency or political subdivision thereof.
"Physical Notes" means one or more certificated Notes in
registered form.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of
such Person with respect to dividends or redemptions or upon
liquidation.
"principal" of a debt note means the principal of the note,
plus, when appropriate, the premium, if any, on the note.
"Private Exchange Notes" means the Private Exchange Notes as
defined in the Registration Rights Agreement.
"Private Placement Legend" means the legend initially set
forth on the Initial Notes in the form set forth on Exhibit A hereto.
"Proceeds Purchase Date" see Section 4.05(b).
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in the normal course of
business for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or equipment.
"Purchase Agreement" means the Purchase Agreement dated as of
July 2, 1998 by and among the Issuers and the Initial Purchaser.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Note annexed hereto as Exhibit A.
"Refinance" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.04 or permitted under the defini-
22
-15-
tion of "Permitted Indebtedness" (other than pursuant to clause (ii), (iv), (v),
(vi), (vii), (viii), (ix), (x), (xii) or (xiii) of the definition of Permitted
Indebtedness), in each case that does not (1) result in an increase in the
aggregate principal amount of Indebtedness of such Person as of the date of such
proposed Refinancing (plus the amount of any premium required to be paid under
the terms of the instrument governing such Indebtedness and the amount of
reasonable expenses incurred by the Company in connection with such Refinancing)
or (2) create Indebtedness with (A) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Indebtedness being
Refinanced or (B) a final maturity earlier than the final maturity of the
Indebtedness being Refinanced; provided that (x) if such Indebtedness being
Refinanced is Indebtedness of the Company, then such Refinancing Indebtedness
shall be Indebtedness solely of the Company and (y) if such Indebtedness being
Refinanced is subordinate or junior to the Notes, then such Refinancing
Indebtedness shall be subordinate to the Notes at least to the same extent and
in the same manner as the Indebtedness being Refinanced.
"Reg. S Global Note" means a global note in registered form
representing the aggregate principal amount of Notes sold pursuant to Regulation
S under the Securities Act.
"Registrar" see Section 2.03.
"Registration" means a registered exchange offer for the Notes
by the Issuers or other registration of the Notes under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of July 2, 1998 by and among the Issuers and the Initial
Purchaser.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; provided that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"Restricted Payments" see Section 4.06.
"Restricted Note" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the note of such Property.
"SEC" or "Commission" means the Securities and Exchange
Commission.
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"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Senior Debt" means the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on any Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without limiting the generality
of the foregoing, "Senior Debt" shall also include the principal of, premium, if
any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, (x) all monetary
obligations of every nature of the Company under the Credit Agreement,
including, without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations and (z) all obligations under
Currency Agreements, in each case whether outstanding on the Issue Date or
thereafter incurred. Notwithstanding the foregoing, "Senior Debt" shall not
include (i) any Indebtedness of the Company to a Subsidiary of the Company or
any Affiliate of the Company or any of such Affiliate's Subsidiaries, (ii)
Indebtedness to, or guaranteed on behalf of, any shareholder, director, officer
or employee of the Company or any Subsidiary of the Company (including, without
limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods,
materials or services, (iv) Indebtedness represented by Disqualified Capital
Stock, (v) any liability for federal, state, local or other taxes owed or owing
by the Company, (vi) Indebtedness incurred in violation of Section 4.04 (but, as
to any such Indebtedness, no such violation shall be deemed to exist for
purposes of this clause (vi) if the holder(s) of such obligation or their
representative shall have received an officers' certificate of the Company to
the effect that the incurrence of such Indebtedness (or, in the case of
revolving credit Indebtedness, that the entire committed amount thereof at the
date on which the initial borrowing thereunder is made) would not violate such
provisions of this Indenture; (vii) Indebtedness which, when incurred and
without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx
Code, is without recourse to the Company; (viii) Indebtedness represented by
Capitalized Lease Obligations existing on the Issue Date: and (ix) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of the Company.
"Significant Subsidiary", with respect to any Person, means
any Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Securities Act.
"Subsidiary", with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person
or (ii) any other Person of which at least a majority of the voting interest
under ordinary circumstances is at the time, directly or indirectly, owned by
such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date of this Indenture (except as provided in Section 10.03) until
such time as this Indenture is qualified under the TIA, and thereafter as in
effect on the date on which this Indenture is qualified under the TIA.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such successor.
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"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice president,
assistant vice president, assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"United States Government Obligations" means direct
non-callable obligations of the United States for the payment of which the full
faith and credit of the United States is pledged.
"United States Legal Tender" means such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts.
"Unrestricted Notes" means one or more Notes that do not and
are not required to bear the Private Placement Legend in the form set forth in
Exhibit A hereto, including, without limitation, the Exchange Notes and any
Notes registered under the Securities Act pursuant to and in accordance with the
Registration Rights Agreement.
"Unrestricted Subsidiary" of any Person means (i) any
Subsidiary of such Person that at the time of determination shall be or continue
to be designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided that (x) the
Company certifies to the Trustee that such designation complies with Section
4.06 and (y) each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to any Indebtedness pursuant to which the lender has recourse to any of
the assets of the Company or any of its Restricted Subsidiaries. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if (x) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.04 and (y) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person of which all the outstanding voting
securities (other than in the case of a Foreign Restricted Subsidiary,
directors' qualifying shares or an immaterial amount of shares required to be
owned by other Persons pursuant to applicable law) are owned by such Person or
any Wholly Owned Restricted Subsidiary of such Person.
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SECTION 1.02. 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:
"Commission" means the SEC.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the Notes means the Company, a Guarantor, if any,
or any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect from time to time, and any other reference in this
Indenture to "generally accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A hereto,
with such appropriate insertions, substitutions and other variations as are
required
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or permitted by this Indenture which is hereby incorporated in and expressly
made a part of this Indenture. The Exchange Notes and the Trustee's certificate
of authentication thereof shall be substantially in the form of Exhibit B
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
this Indenture, law, stock exchange rule, dispository rule, agreements to which
the issuers are subject or usage. The Issuers shall approve the forms of the
Notes and any notation, legend or endorsement on them. Each Note shall be dated
the date of its issuance and shall show the date of its authentication. Global
Notes shall bear the legend set forth in Exhibit C hereto. The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of Bankers Trust Company, as
Registrar, as custodian for the Depositary, as hereinafter provided.
SECTION 2.02. Execution and Authentication.
Two Officers, including no more than one signing solely as
Assistant Secretary, shall sign, or one Officer (other than as an Assistant
Secretary) shall sign and the Secretary or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to such Officer's signature, the Notes for each of the
Issuers by manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue in an aggregate principal amount not to exceed $160,000,000 in one or more
series; provided that the aggregate principal amount of Initial Notes on the
Issue Date shall not exceed $110,000,000, (ii) Private Exchange Notes from time
to time only in exchange for a like principal amount of the same type of Initial
Notes and (iii) Unrestricted Notes from time to time (A) in exchange for a like
principal amount of the same type of Initial Notes or a like principal amount of
the same type of Private Exchange Notes or (B) as the Issuers may determine in
accordance with this Indenture, in each case upon a written order of each of the
Issuers in the form of an Officers' Certificate. Each such written order shall
specify the amount of and the type of Notes to be authenticated and the date on
which the Notes are to be authenticated, whether the Notes are to be Initial
Notes, Private Exchange Notes or Unrestricted Notes and whether the Notes are to
be issued as Physical Notes or Global Notes and such other information as the
Trustee may reasonably request. The aggregate principal amount of Notes
outstanding at any time may not exceed $160,000,000, except as provided in
Sections 2.07 and 2.08.
In the event that the Issuers shall issue and the Trustee
shall authenticate any Notes issued under this Indenture subsequent to the Issue
Date pursuant to clauses (i) and (iii) of the first sentence of the immediately
preceding paragraph, the Issuers shall use their best efforts to obtain the same
"CUSIP" number for such Notes as is printed on the Notes outstanding at such
time; provided, however, that if any series of Notes issued under this Indenture
subsequent to the Issue Date is determined, pursuant to an Opinion of Counsel of
the Issuers in a form reasonably satisfactory to the Trustee to be a different
class of security than the Notes outstanding at such time for federal income tax
purposes, the Issuers may obtain a "CUSIP" number for such Notes that is
different than the "CUSIP" number printed on the Notes then outstanding.
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Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote or consent) as one class and no series of Notes will have
the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuers to authenticate Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Issuers and Affiliates of the
Issuers. The Trustee hereby appoints Bankers Trust Company to be the
authenticating agent on the Issue Date.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Issuers shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where (a) Notes may be presented or
surrendered for registration of transfer or for exchange (the "Registrar"), (b)
Notes may be presented or surrendered for payment (the "Paying Agent") and (c)
notices and demands in respect of the Notes and this Indenture may be served.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuers, upon notice to the Trustee, may appoint one or more
co-Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent and the term "Registrar" includes any
co-registrar. The Issuers may change any Paying Agent or Registrar without
notice to any Holder. Except as provided herein, the Company or any Guarantor
may act as Paying Agent, Registrar or co-Registrar.
The Issuers shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuers shall notify the Trustee of the
name and address of any such Agent. If the Issuers fail to maintain a Registrar
or Paying Agent, or fail to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Issuers initially appoint Bankers Trust Company as
Registrar, Paying Agent and agent for service of demands and notices in
connection with the Notes until such time as Bankers Trust Company has resigned
or a successor has been appointed. The Issuers initially appoint The Depository
Trust Company (DTC) to act as Depositary with respect to the Global Notes.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Issuers shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, or interest on, the Notes, and shall notify the Trustee
of any Default by the Issuers in making any such payment. The Issuers at any
time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Issuers to the
Paying Agent (if other than an Issuer), the Paying Agent shall have no further
liability for such assets. If an Issuer, any Guarantor or any of their
respective Affiliates acts as
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Paying Agent, it shall, on or before each due date of the principal of or
interest on the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
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 Holders. If the Trustee is not the Registrar, the Issuers shall
furnish to the Trustee at least five days before each Interest Record Date and
at such other times as the Trustee may request in writing a list as of such date
and in such form as the Trustee may reasonably require of the names and
addresses of Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when
Notes are presented to the Registrar with a request to register the transfer of
such Notes or to exchange such Notes for an equal principal amount of Notes of
other authorized denominations of the same series, the Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Notes surrendered for transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Issuers shall execute and the
Trustee shall authenticate Notes at the Registrar's written request. No service
charge shall be made for any registration of transfer or exchange, but the
Issuers may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith payable by the
transferor of such Notes (other than any such transfer taxes or other
governmental charge payable upon exchanges or transfers pursuant to Section
2.10, 3.06, 4.05, 4.14, or 10.05). Neither the Issuers nor the Registrar shall
be required to register the transfer or exchange of any Note (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Notes and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part pursuant to Article
Three hereof, except the unredeemed portion of any Note being redeemed in part.
None of the Issuers or the Trustee or the Registrar shall be
liable for any delay by the Depositary in identifying the beneficial owners of
the Notes and each such person may conclusively rely on, and shall be protected
in relying on, instructions from the Depositary for all purposes (including with
respect to the registration and delivery, and the respective principal amounts,
of any Notes to be issued).
Members of, or participants in, the Depositary shall have no
rights under this Indenture with respect to any Global Note held on their behalf
by the Depositary or the Registrar, or under the Global Note, and the Depositary
may be treated by the Issuers, the Trustee and any agent of the Issuers or the
Trustee as the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (x) prevent the Issuers, the
Trustee or any agent of the Issuers or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or (y) impair, as between the Depositary and members of, or participants in, the
Depositary, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
Prior to the registration of any transfer by a Holder as
provided herein, the Issuers, the Trustee and any Agent shall treat the person
in whose name the Note is registered as the owner thereof for all purposes
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whether or not the Note shall be overdue, and neither the Issuers, the Trustee
nor any Agent shall be affected by notice to the contrary. Any Holder of a
beneficial interest in a Global Note shall, by acceptance of such beneficial
interest in a Global Note, agree that transfers of beneficial interests in such
Global Note may be effected only through a book-entry system maintained by the
Depositary (or its agent), and that ownership of a beneficial interest in a
Global Note shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Issuers and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Issuers shall issue and the Trustee
shall authenticate a replacement Note if the Trustee's requirements for
replacement of Notes are met. If required by the Issuers or the Trustee, such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Issuers and the Trustee, to protect the Issuers, the
Trustee and any Agent from any loss which any of them may suffer if a Note is
replaced. The Issuers and the Trustee may charge such Holder for its reasonable
out-of-pocket expenses in replacing a Note, including reasonable fees and
expenses of counsel. If after the delivery of such new Note, a bona fide
purchaser of the original Note in lieu of which such new Note was issued
presents for payment such original Note, the Issuers and the Trustee shall be
entitled to recover such new Note from the person to whom it was delivered or
any transferee thereof, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuers or the Trustee in
connection therewith.
Every replacement Note is an additional obligation of the
Issuers.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding.
Subject to Section 2.09, a Note does not cease to be outstanding because an
Issuer or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date, Purchase Date or the Final Maturity
Date the Paying Agent holds money sufficient to pay all of the principal and
interest due on the Notes payable on that date (or the portion thereof to be
redeemed or maturing, as the case may be), and is not prohibited from paying
such money to the Holders pursuant to the terms of this Indenture, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
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 an Issuer, a Guarantor or any of their respective Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Trust Officer of the Trustee actually knows are so owned shall be
disregarded.
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The Issuers shall notify the Trustee, in writing, when an
Issuer, a Guarantor or any of their respective Affiliates repurchases or
otherwise acquires Notes and of the aggregate principal amount of such Notes so
repurchased or otherwise acquired.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Issuers may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Issuers in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Issuers consider appropriate
for temporary Notes. Without unreasonable delay, the Issuers shall prepare and
the Trustee shall authenticate upon receipt of a written order of the Issuers
pursuant to Section 2.02 definitive Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel, and at the written direction of the Issuers, dispose of and
deliver evidence of such disposal of all Notes surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.07, the Issuers may not
issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation. If an Issuer or any Guarantor shall acquire any of the Notes,
such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
The Issuers shall pay interest on overdue principal from time
to time on demand at the applicable rate of interest then borne by the Notes.
The Issuers shall, to the extent lawful, pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the rate of
interest then borne by the Notes.
If the Issuers default in a payment of interest on the Notes,
they shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day preceding the date
fixed by the Issuers for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Issuers shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the 30-day period set forth in Section 6.01(i) shall
be paid to Holders as of the Interest Record Date for the Interest Payment Date
for which interest has not been paid.
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SECTION 2.13. CUSIP Number.
The Issuers in issuing the Notes will use a "CUSIP" number and
the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided , however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Issuers shall
promptly notify the Trustee of any changes in CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to 10:00 a.m. New York Time on each Interest Payment
Date, Redemption Date, Purchase Date and the Final Maturity Date, the Issuers
shall deposit with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Redemption Date, Purchase Date or Final Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date, Redemption Date, Purchase Date or Final Maturity
Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the
name of the Depositary or the nominee of such Depositary, (ii) be delivered to
Bankers Trust Company as custodian for such Depositary and (iii) bear legends as
set forth in Exhibit C.
Members of, or participants in, the Depositary
("Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, or Bankers Trust Company as
its custodian, or under the Global Note, and the Depositary may be treated by
the Issuers, the Trustee and any agent of the Issuers or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuers, the Trustee or any
agent of the Issuers or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and Participants, the operation of customary
practices governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depositary and the provisions of Section 2.16; provided, however, that
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in Global Notes if (i) the Depositary notifies the
Issuers that it is unwilling or unable to continue as Depositary for any Global
Note and a successor Depositary is not appointed by the Issuers within 90 days
of such notice or (ii) an Event of Default has occurred and is continuing and
the Registrar has received a request from the Depositary to issue Physical
Notes.
(c) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuers shall execute, and the Trustee shall upon written
instructions from the Issuers authenticate and deliver or mail, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount of Physical
Notes of authorized denominations.
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(d) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) of this
Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(e) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Notes.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Notes. When Physical
Notes are presented to the Registrar with a request:
(i) to register the transfer of the Physical Notes; or
(ii) to exchange such Physical Notes for an equal principal
amount of Physical Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for such
transactions are met; provided, however, that the Physical Notes presented or
surrendered for Registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing; and
(II) in the case of Physical Notes the offer and sale of which
have not been registered under the Securities Act, such Physical Notes
shall be accompanied, in the sole discretion of the Issuers, by the
following additional information and documents, as applicable:
(A) if such Physical Note is being delivered to the
Registrar by a Holder for Registration in the name of
such Holder, without transfer, a certification from
such Holder to that effect (substantially in the form
of Exhibit D hereto); or
(B) if such Physical Note is being transferred to a QIB
in accordance with Rule 144A, a certification to that
effect (substantially in the form of Exhibit D
hereto); or
(C) if such Physical Note is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the
form of Exhibit D hereto) and a transferee letter of
representation substantially in the form of Exhibit E
hereto and, at the option of the Issuers, an Opinion
of Counsel reasonably satisfactory to the Issuers to
the effect that such transfer is in compliance with
the Securities Act; or
(D) if such Physical Note is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and,
at the option of the Issuers, an Opinion of Counsel
reasonably satisfactory to the Issuers to the effect
that such transfer is in compliance with the
Securities Act; or
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(E) if such Physical Note is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and, at the option of the Issuers, an
Opinion of Counsel reasonably acceptable to the
Issuers to the effect that such transfer is in
compliance with the Securities Act.
(b) Restrictions on Transfer of a Physical Note for a
Beneficial Interest in a Global Note. A Physical Note the offer and sale of
which has not been registered under the Securities Act may not be exchanged for
a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar of a Physical Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Registrar, together with:
(A) certification, substantially in the form of Exhibit D
hereto, that such Physical Note is being transferred
(I) to a QIB or (II) to an Accredited Investor and,
with respect to (II), at the option of the Issuers,
an Opinion of Counsel reasonably acceptable to the
Issuers to the effect that such transfer is in
compliance with the Securities Act; and
(B) written instructions directing the Registrar to make,
or to direct the Depositary to make, an endorsement
on the applicable Global Note to reflect an increase
in the aggregate amount of the Notes represented by
the Global Note,
then the Registrar shall cancel such Physical Note in accordance with Section
2.11 hereof and cause, or direct the Depositary to cause, in accordance with the
standing instructions and procedures existing between the Depositary and the
Registrar, the principal amount of Notes represented by the applicable Global
Note to be increased accordingly. If no Global Note is then outstanding, the
Issuers shall, unless either of the events in the proviso to Section 2.15(b)
have occurred and are continuing, issue and the Trustee shall, upon written
instructions from the Issuers in accordance with Section 2.02, authenticate such
a Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor. Upon receipt by the Registrar or Co-Registrar of written instructions,
or such other instruction as is customary for the Depositary, from the
Depositary or its nominee, requesting the Registration of transfer of an
interest in a Global Note to another type of Global Note, together with the
applicable Global Notes (or, if the applicable type of Global Note required to
represent the interest as requested to be transferred is not then outstanding,
only the Global Note representing the interest being transferred), the Registrar
or Co-Registrar shall cancel such Global Notes (or Global Note) and the Issuers
shall issue and the Trustee shall, upon written instructions from the Issuers in
accordance with Section 2.02, authenticate new Global Notes of the types so
cancelled (or the type so cancelled and applicable type required to represent
the interest as requested to be transferred) reflecting the applicable increase
and decrease of the principal amount of Notes represented by such types of
Global Notes, giving effect to such transfer. If the applicable type of Global
Note required to represent the interest as requested to be transferred is not
outstanding at the time of such request, the Issuers shall issue and the Trustee
shall, upon written instructions from the Issuers in accordance with Section
2.02, authenticate a new Global Note of such type in principal amount equal to
the principal amount of the interest requested to be transferred.
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(d) Transfer of a Beneficial Interest in a Global Note for a
Physical Note.
(i) Any Person having a beneficial interest in a Global Note
may upon request exchange such beneficial interest for a Physical Note;
provided, however, that prior to the Registration, a transferee that is
a QIB or Institutional Accredited Investor may not exchange a
beneficial interest in Global Note for a Physical Note. Upon receipt by
the Registrar of written instructions, or such other form of
instructions as is customary for the Depositary, from the Depositary or
its nominee on behalf of any Person (subject to the previous sentence)
having a beneficial interest in a Global Note and upon receipt by the
Trustee of a written order or such other form of instructions as is
customary for the Depositary or the Person designated by the Depositary
as having such a beneficial interest containing registration
instructions and, in the case of any such transfer or exchange of a
beneficial interest in Notes the offer and sale of which have not been
registered under the Securities Act, the following additional
information and documents:
(A) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and,
at the option of the Issuers, an Opinion of Counsel
reasonably satisfactory to the Issuers to the effect
that such transfer is in compliance with the
Securities Act; or
(B) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and, at the option of the Issuers, an
Opinion of Counsel reasonably satisfactory to the
Issuers to the effect that such transfer is in
compliance with the Securities Act,
then the Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate principal amount of the applicable Global Note
to be reduced and, following such reduction, the Issuers will execute
and, upon receipt of an authentication order in the form of an
Officers' Certificate in accordance with Section 2.02, the Trustee will
authenticate and deliver or mail to the transferee a Physical Note in
the appropriate principal amount.
(ii) Notes issued in exchange for a beneficial interest in a
Global Note pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Registrar in writing. The Registrar shall
deliver such Physical Notes to the Persons in whose names such Physical
Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection 2.15(b)), a Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless, and the Registrar is hereby authorized to deliver Notes without the
Private Placement Legend if, (i) there is delivered to the Registrar an Opinion
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of Counsel reasonably satisfactory to the Issuers and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act; (ii)
such Note has been sold pursuant to an effective registration statement under
the Securities Act (including pursuant to a Registration); or (iii) the date of
such transfer, exchange or replacement is two years after the later of (x) the
Issue Date and (y) the last date that an Issuer or any affiliate (as defined in
Rule 144 under the Securities Act) of an Issuer was the owner of such Notes (or
any predecessor thereto).
(g) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
Neither the Trustee nor the Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any
transfers between or among Participants or beneficial owners of interest in any
Global Note) other than the Registrar, 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.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Issuers shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuers want to redeem Notes pursuant to paragraph 6 or
7 of the Notes at the applicable redemption price set forth thereon, they shall
notify the Trustee in writing of the Redemption Date and the principal amount of
Notes to be redeemed. The Issuers shall give such notice to the Trustee at least
60 days before the Redemption Date (unless a shorter notice shall be agreed to
by the Trustee in writing), together with an Officers' Certificate stating that
such redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which such Notes are listed
or, if such Notes are not so listed, on a pro rata basis, by lot or in such
other manner as the Trustee shall deem fair and appropriate.
The Trustee may select for redemption portions of the
principal amount of Notes that have denominations equal to or larger than $1,000
principal amount. Notes and portions of them the Trustee so selects
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shall be in amounts of $1,000 principal amount or integral multiples thereof.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Issuers shall mail a notice of redemption by first-class mail to each
Holder whose Notes are to be redeemed at such Holder's registered address.
Each notice of redemption shall identify the Notes to be
redeemed (including the CUSIP number thereon) and shall state:
(1) the paragraph of the Notes pursuant to which the Notes are
being redeemed;
(2) the Redemption Date;
(3) the redemption price;
(4) the name and address of the Paying Agent to which the
Notes are to be surrendered for redemption;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Issuers default in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the redemption price upon surrender to
the Paying Agent;
(7) 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 thereof will be
issued; and
(8) the CUSIP number, if any, pursuant to Section 2.13.
At the Issuers' request, the Trustee shall give the notice of
redemption on behalf of the Issuers, in the Issuers' name and at the Issuers'
expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Notes called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price, plus accrued interest thereon, if any, to the Redemption Date,
but interest installments whose maturity is on or prior to such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date.
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SECTION 3.05. Deposit of Redemption Price.
On or before 10:00 a.m., New York Time, on the Redemption
Date, the Issuers shall deposit with the Paying Agent (or if an Issuer is Paying
Agent, shall, on or before the Redemption Date, segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest, if any, on
all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Issuers to
the Trustee for cancellation. The Trustee or the Paying Agent shall return to
the Issuers any money deposited with the Trustee or Paying Agent by the Issuers
in excess of the amount necessary to pay the redemption price of and accrued
interest, if any, on all Notes to be redeemed.
If the Issuers comply 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. Upon surrender of a Note for redemption in accordance with the notice
given pursuant to Section 3.03 hereof, such Note shall be purchased by the
Issuers at the redemption price, together with accrued and unpaid interest to
the redemption date.
If any Note surrendered for redemption in the manner provided
in the Notes shall not be so paid on the Redemption Date due to the failure of
the Issuers to deposit with the Paying Agent money sufficient to pay the
redemption price thereof, the principal and accrued and unpaid interest, if any,
thereon shall, until paid or duly provided for, bear interest as provided in
Sections 2.12 and 4.01 with respect to any payment default.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender and cancellation of a Note that is redeemed in
part, the Issuers shall issue and the Trustee shall authenticate for the Holder
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered and cancelled.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the
Notes in the manner provided in the Notes and the Registration Rights Agreement.
An installment of principal or interest shall be considered paid on the date due
if the Trustee or Paying Agent (other than an Issuer, a Guarantor or any of
their respective Affiliates) holds on that date money designated for and
sufficient to pay the installment in full and is not prohibited from paying such
money to the Holders of the Notes pursuant to the terms of this Indenture.
The Issuers shall pay cash interest on overdue principal at
the same rate per annum borne by the applicable Notes. The Issuers shall pay
cash interest on overdue installments of interest at the same rate per annum
borne by the applicable Notes, to the extent lawful, as provided in Section
2.12.
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SECTION 4.02. Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, The
City of New York, the office or agency required under Section 2.03. The Issuers
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Issuers shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
13. The Issuers hereby initially designate Bankers Trust Company at its address
set forth in Section 13.02 as their office or agency in The Borough of
Manhattan, The City of New York, for such purposes.
SECTION 4.03. Limitations on Transactions with Affiliates
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each, an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property
with a fair market value in excess of $1.0 million shall be approved by the
Board of Directors of the Company or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $5.0 million, the Company or such Restricted Subsidiary, as the case may
be, shall, prior to the consummation thereof, obtain a favorable opinion as to
the fairness of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, from an Independent Financial Advisor and file the same
with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply
to (i) reasonable fees and compensation paid to and indemnity provided on behalf
of, officers, directors, employees or consultants of the Company or any
Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management; (ii) transactions exclusively
between or among the Company and any of its Wholly Owned Restricted Subsidiaries
or exclusively between or among such Wholly Owned Restricted Subsidiaries,
provided such transactions are not otherwise prohibited by this Indenture; (iii)
any agreement as in effect as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
in any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date; (iv)
Restricted Payments permitted by Section 4.06 of this Indenture; and (v)
transactions with customers, clients, suppliers or purchasers or sellers of
goods or services, in each case in the ordinary course of business and otherwise
in compliance with this Indenture and on terms fair to the Company and its
Restricted Subsidiaries in the reasonable determination of the Board of
Directors of the Company, or at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party.
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SECTION 4.04. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Company may incur
Indebtedness (including, without limitation, Acquired Indebtedness) and
Restricted Subsidiaries of the Company may incur Acquired Indebtedness, in each
case if on the date of the incurrence of such Indebtedness, after giving effect
to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the
Company is greater than (a) 2.0 to 1.0 if the date of such incurrence is on or
prior to December 31, 1999, or (b) 2.25 to 1.0 if the date of such incurrence is
after December 31, 1999.
SECTION 4.05. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors) and (ii) at least 75% of the consideration
received by the Company or the Restricted Subsidiary, as the case may be, from
such Asset Sale shall be in the form of cash or Cash Equivalents; provided that
the amount of (x) 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 guarantee thereof) that are assumed by
the transferee of any such assets and (y) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are converted within 180 days by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received) shall be deemed to be
cash for purposes of this provision. Upon the consummation of an Asset Sale, the
Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash
Proceeds relating to such Asset Sale within 270 days of receipt thereof either
(A) to prepay any Senior Debt and, in the case of any Senior Debt under any
revolving credit facility, effect a permanent reduction in the availability
under such revolving credit facility, (B) to make an investment in properties
and assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of the
Company and its Restricted Subsidiaries as existing on the Issue Date or in
businesses reasonably related thereto ("Replacement Assets"), or (C) a
combination of prepayment and investment permitted by the foregoing clauses (A)
and (B). On the 271st day after an Asset Sale or such earlier date, if any, as
the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in the preceding sentence (each, a "Net Proceeds Offer Trigger Date"),
such aggregate amount of Net Cash Proceeds that is an integral multiple of
$1,000 which have not been applied on or before such Net Proceeds Offer Trigger
Date as permitted in the preceding sentence (each, a "Net Proceeds Offer
Amount") shall be applied by the Company or such Restricted Subsidiary to make
an offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds
Offer Payment Date") not less than 30 nor more than 60 days following the
applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata
basis, that amount of the Notes equal to the Net Proceeds Offer Amount at a
price equal to 100% of the principal amount of the Notes to be purchased, plus
accrued and unpaid interest thereon, if any, to the date of purchase; provided,
however, that if at any time any non-cash consideration received by the Company
or any Restricted Subsidiary of the Company, as the case may be, in connection
with any Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any such non-cash consideration),
then such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this
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covenant. The Company may defer the Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0
million resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0
million, shall be applied as required pursuant to this paragraph).
In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01, the
successor corporation shall be deemed to have sold the properties and assets of
the Company and its Restricted Subsidiaries not so transferred for purposes of
this covenant, and shall comply with the provisions of this covenant with
respect to deemed net cash proceeds from such deemed sale. In addition, the fair
market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this covenant.
Notwithstanding the two immediately preceding paragraphs, the
Company and its Restricted Subsidiaries will be permitted to consummate an Asset
Sale without complying with such paragraphs to the extent (i) at least 75% of
the consideration for such Asset Sale constitutes Replacement Assets and (ii)
such Asset Sale is for fair market value; provided that any consideration not
constituting Replacement Assets received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be consummated under
this paragraph shall constitute Net Cash Proceeds subject to the provisions of
the two preceding paragraphs.
Each Net Proceeds Offer will be mailed to the record Holders as
shown on the register of Holders within 25 days following the Net Proceeds Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth herein. Upon receiving notice of the Net Proceeds Offer, Holders may
elect to tender their Notes in whole or in part in integral multiples of $1,000
in exchange for cash. To the extent Holders properly tender Notes in an amount
exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be
purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer
shall remain open for a period of 20 Business Days or such longer period as may
be required by law.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date
contained in the first paragraph of subsection (a) above, each notice of a Net
Proceeds Offer pursuant to this Section 4.05 shall be mailed or caused to be
mailed, by first class mail, by the Company not more than 25 days after the Net
Proceeds Offer Trigger Date to all Holders at their last registered addresses as
of a date within 15 days of the mailing of such notice, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Net Proceeds Offer and shall
state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
4.05 and that all Notes tendered will be accepted for payment; provided,
however, that if the aggregate principal amount of Notes tendered in a Net
Proceeds Offer exceeds the aggregate amount of the Net Proceeds Offer, the
Company shall select the Notes to be purchased on a pro rata basis based
on the amounts tendered (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000
or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be at least 20 and not more than 30
Business Days from the date of mailing of notice of such Net Proceeds
Offer, or such longer period as required by law) (the "Proceeds Purchase
Date");
(3) that any Note not tendered will continue to accrue interest;
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(4) that, unless the Issuers default in making payment therefor, any
Note accepted for payment pursuant to the Net Proceeds Offer shall cease
to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net
Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof;
On or before 10:00 a.m. New York Time, on the Proceeds Purchase
Date, the Issuers shall (i) accept for payment Notes or portions thereof validly
tendered pursuant to the Net Proceeds Offer which are to be purchased in
accordance with item (b)(1) above, (ii) deposit with the Paying Agent United
States Legal Tender sufficient to pay the purchase price plus accrued interest,
if any, of all Notes to be purchased and (iii) deliver to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof being purchased by the Issuers. The Paying Agent shall promptly mail to
the Holders of Notes so accepted payment in an amount equal to the purchase
price plus accrued interest, if any.
Any amounts remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.05, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.05 by virtue thereof.
SECTION 4.06. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions by the
Company payable in Qualified Capital Stock of the Company) on or in respect of
shares of the Company's Capital Stock to holders of such Capital Stock, (b)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or any warrants, rights or options to purchase or acquire shares of
any class of such Capital Stock, (c) make any principal payment on, purchase,
defease, redeem, prepay, decrease or otherwise acquire or retire for value,
prior to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, any Indebtedness of the Company that is subordinate or junior in
right of payment to the
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Notes or (d) make any Investment (other than Permitted Investments) (each of the
foregoing actions set forth in clauses (a), (b), (c) and (d) being referred to
as a "Restricted Payment"), if at the time of such Restricted Payment or
immediately after giving effect thereto, (i) a Default or an Event of Default
shall have occurred and be continuing; or (ii) the Company is not able to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.04 or (iii) the aggregate amount of Restricted
Payments (including such proposed Restricted Payment) made subsequent to the
Issue Date (the amount expended for such purposes, if other than in cash, being
the fair market value of such property as determined in good faith by the Board
of Directors of the Company) shall exceed the sum of: (w) 50% of the cumulative
Consolidated Net Income (or if cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss) of the Company earned subsequent to the Issue
Date and on or prior to the date the Restricted Payment occurs (the "Reference
Date") (treating such period as a single accounting period); plus (x) 100% of
the aggregate net cash proceeds received by the Company from any Person (other
than a Subsidiary of the Company) from the issuance and sale subsequent to the
Issue Date and on or prior to the Reference Date of Qualified Capital Stock of
the Company; plus (y) without duplication of any amounts included in clause
(iii)(x) above, 100% of the aggregate net cash proceeds of any equity
contribution received by the Company from a holder of the Company's Capital
Stock (excluding, in the case of clauses (iii)(x) and (y), any net cash proceeds
from a Public Equity Offering to the extent used to redeem the Notes in
compliance with the provisions set forth under paragraph 8 of the Note); plus
(z) without duplication, the sum of (1) the aggregate amount returned in cash on
or with respect to Investments (other than Permitted Investments) made
subsequent to the Issue Date whether through interest payments, principal
payments, dividends or other distributions or payments; (2) the net cash
proceeds received by the Company or any of its Restricted Subsidiaries from the
disposition of all or any portion of such Investments (other than to a
Subsidiary of the Company); and (3) upon redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the fair market value of such Subsidiary;
provided, however, that the sum of clauses (1), (2) and (3) above shall not
exceed the aggregate amount of all such Investments made subsequent to the Issue
Date.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
within 60 days after the date of declaration of such dividend if the dividend
would have been permitted on the date of declaration; (2) the acquisition of any
shares of Capital Stock of the Company, either (i) solely in exchange for shares
of Qualified Capital Stock of the Company or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of shares of Qualified Capital Stock of the Company; (3) the
acquisition of any Indebtedness of the Company that is subordinate or junior in
right of payment to the Notes either (i) solely in exchange for shares of
Qualified Capital Stock of the Company, or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of (A) shares of Qualified Capital Stock of the Company or (B)
Refinancing Indebtedness; (4) if no Default or Event of Default shall have
occurred and be continuing, repurchases by the Company of Common Stock of the
Company or Holdings from employees of the Company or any of its Subsidiaries or
their authorized representatives upon the death, disability or termination of
employment of such employees; provided that the aggregate amount of all such
repurchases shall not exceed $3.0 million in any fiscal year and $10.0 million
in aggregate; provided, further, that at the time of any such repurchase, the
Consolidated Fixed Charge Coverage Ratio of the Company is greater than 2.0 to
1.0; (5) the payment of any dividend or distribution to the extent necessary to
permit direct or indirect beneficial owners of shares of Capital Stock of the
Company, including Holdings, to pay federal, state or local income tax
liabilities arising from income of the Company and attributable to them solely
as a result of the Company (and any intermediate entity through which the Holder
owns such shares) being a limited liability company, partnership or similar
entity for federal income tax purposes ("Permitted Tax Distributions"); and (6)
any dividend or distribution to Holdings in respect of overhead expenses, legal,
accounting, SEC reporting and other professional fees and expenses of Holdings
directly attributable to the operations of the Company and its Restricted
Subsidiaries. In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in
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accordance with clause (iii) of the immediately preceding paragraph, amounts
expended pursuant to clauses (1), (2) (ii) and (4) shall be included in such
calculation.
SECTION 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Restricted Subsidiaries, taken
as a whole.
SECTION 4.08. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company or
any Restricted Subsidiary and (2) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability, or Lien upon the property, of the Company or any Restricted
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate provision has been made.
SECTION 4.09. Notice of Defaults.
(a) In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of time, or
both, would constitute such a default) under such Indebtedness, the Company
shall promptly give written notice to the Trustee of such declaration, the
status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default, the
Company shall promptly deliver an Officers' Certificate to the Trustee
specifying the Default or Event of Default.
SECTION 4.10. Maintenance of Properties and Insurance.
(a) Subject to Article Five, the Company shall cause all material
properties owned by or leased to it or any Restricted Subsidiary and used or
useful in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in normal condition, repair and working
order and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section 4.10 shall prevent
the Company or any Restricted Subsidiary from discontinuing the use, operation
or maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of the
Company or the Restricted Subsidiary concerned, or of an Officer (or other agent
employed by the Company or of any Restricted Subsidiary) of the Company or such
44
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Restricted Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary as, in the judgment of the Company, may be necessary.
(b) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions as, in the judgment of the Company, may be
necessary.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 45 days after the
end of each of the first three fiscal quarters of the Company and within 90 days
after the close of each fiscal year a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
stating that a review of the activities of the Issuers has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default or Event of Default by the Issuers that occurred during such fiscal
quarter or fiscal year. If they do know of such a Default or Event of Default,
the certificate shall describe all such Defaults or Events of Default, their
status and the action the Company is taking or proposes to take with respect
thereto. The first certificate to be delivered by the Company pursuant to this
Section 4.11 shall be for the period commencing July 1, 1998 and ending
September 30, 1998.
SECTION 4.12. Reports to Holders.
The Issuers will deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, which the
Issuers are required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Notwithstanding that the Issuers may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuers
will file with the Commission, to the extent permitted, and provide the Trustee
and Holders with such annual reports and such information, documents and other
reports specified in Sections 13 and 15(d) of the Exchange Act. The Issuers will
also comply with the other provisions of TIA Section 314(a).
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
Each of the Issuers 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 or
extension law or any usury law or other law, which would prohibit or forgive the
Issuers or such Guarantor from paying all or any portion of the principal of
and/or interest, if any, on the Notes as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Issuers and each Guarantor hereby expressly waive all benefit or advantage
of any such law, and covenants that it shall not 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 had been enacted.
SECTION 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require that the Issuers purchase all or a portion of such
Holder's Notes pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price equal to 101% of the principal amount thereof plus
accrued interest to the date of purchase.
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(b) Prior to the mailing of the notice referred to below, but in any
event within 30 days following any Change of Control, the Issuers covenant to
(i) repay in full and terminate all commitments under Indebtedness under the
Credit Agreement and all other Senior Debt the terms of which require repayment
upon a Change of Control or offer to repay in full and terminate all commitments
under all Indebtedness under the Credit Agreement and all other such Senior Debt
and to repay the Indebtedness owed to each lender which has accepted such offer
or (ii) obtain the requisite consents under the Credit Agreement and all other
Senior Debt to permit the repurchase of the Notes as provided below. The Issuers
shall first comply with this Section 4.14(b) before they shall be required to
repurchase Notes pursuant to Section 4.14(c). The Issuers' failure to comply
with this Section 4.14(b) shall constitute an Event of Default described in
clause (iii) and not in clause (ii) under Section 6.01.
(c) Within 30 days following the date upon which the Change of
Control occurred, the Issuers must send, by first class mail, a notice to each
Holder, with a copy to the Trustee, which notice shall govern the terms of the
Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered and not withdrawn will be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 60 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before 10:00 a.m., New York Time, on the Change of Control
Payment Date, the Company shall (i) accept for payment Notes or portions thereof
validly tendered pursuant to the Change of Control
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Offer, (ii) deposit with the Paying Agent United States Legal Tender sufficient
to pay the purchase price plus accrued interest, if any, of all Notes so
tendered and (iii) deliver to the Trustee Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued interest,
if any, and the Trustee shall promptly authenticate and mail to such Holders new
Notes equal in principal amount to any unpurchased portion of the Notes
surrendered. Any Notes not so accepted shall be promptly mailed by the Company
to the Holder thereof.
Any amounts remaining after the purchase of Notes pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with this Section
4.14, the Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.14 by virtue thereof. Holders electing to have a Note purchased
pursuant to a Change of Control Offer will be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third business day prior to the Change of
Control Payment Date.
SECTION 4.15. Prohibition on Incurrence of Senior Subordinated Debt.
The Company will not incur or suffer to exist Indebtedness that is
both senior in right of payment to the Notes and subordinate in right of payment
to any other Indebtedness of the Company.
SECTION 4.16. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) the Credit Agreement; (4)
customary non-assignment provisions of any contract or any lease governing a
leasehold interest of any Restricted Subsidiary of the Company; (5) any
instrument governing Acquired Indebtedness, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person or the properties or assets of the Person so acquired; (6)
agreements existing on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date; (7) an agreement governing
Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clause (2), (3), (5) or (6) above;
provided, however, that the provisions relating to such encumbrance or
restriction contained in any such Indebtedness are no less favorable to the
Company in any material respect as determined by the Board of Directors of the
Company in their reasonable and good faith judgment than the provisions relating
to such encumbrance or restriction contained in agreements referred to in such
clause (2), (3), (5) or (6); or (8) any agreement or instrument governing
Indebtedness (whether or not outstanding) of Foreign Restricted Subsidiaries
incurred in reliance on clause (xiii) of the definition of Permitted
Indebtedness.
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SECTION 4.17. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Wholly Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company.
SECTION 4.18. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes, the Notes are secured by
a Lien on such property, assets or proceeds that is senior in priority to such
Liens and (ii) in all other cases, the Notes are equally and ratably secured,
except for (A) Liens existing as of the Issue Date to the extent and in the
manner such Liens are in effect on the Issue Date; (B) Liens securing Senior
Debt; (C) Liens securing the Notes; (D) Liens of the Company or a Wholly Owned
Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of
the Company; (E) Liens securing Refinancing Indebtedness incurred to Refinance
any Indebtedness incurred in accordance with the provisions of this Indenture
and secured by a Lien permitted thereunder; provided, however, that such Liens
(x) are no less favorable to the Holders and are not more favorable to the
lienholders with respect to such Liens than the Liens in respect of the
Indebtedness being Refinanced and (y) do not extend to or cover any property or
assets of the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced; and (F) Permitted Liens.
SECTION 4.19. Limitation of Guarantees by Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries,
directly or indirectly, by way of the pledge of any intercompany note or
otherwise, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Company or any other Restricted Subsidiary of
the Company (other than (A) Indebtedness and other obligations under the Credit
Agreement, (B) Permitted Indebtedness of a Restricted Subsidiary of the Company,
(C) Indebtedness under Currency Agreements in reliance on clause (v) of the
definition of Permitted Indebtedness, or (D) Interest Swap Obligations incurred
in reliance on clause (iv) of the definition of Permitted Indebtedness), unless,
in any such case (a) such Restricted Subsidiary executes and delivers a
supplemental indenture to this Indenture, providing a Guarantee of payment of
the Notes by such Restricted Subsidiary (each a "Guarantee") and (b) (x) if any
such assumption, guarantee or other liability of such Restricted Subsidiary is
provided in respect of Senior Debt, the guarantee or other instrument provided
by such Restricted Subsidiary in respect of such Senior Debt may be superior to
the Guarantee pursuant to subordination provisions no less favorable to the
Holders of the Notes than those contained in this Indenture and (y) if such
assumption, guarantee or other liability of such Restricted Subsidiary is
provided in respect of Indebtedness that is expressly subordinated to the Notes,
the guarantee or other instrument provided by such Restricted Subsidiary in
respect of such subordinated Indebtedness shall be subordinated to such
Guarantee pursuant to subordination provisions no less favorable to the Holders
of the Notes than those contained in this Indenture.
Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon: (i) the
unconditional release of such Re-
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stricted Subsidiary from its liability in respect of the Indebtedness in
connection with which such Guarantee was executed and delivered pursuant to the
preceding paragraph; or (ii) any sale or other disposition (by merger or
otherwise) to any Person which is not a Restricted Subsidiary of the Company of
all of the Company's Capital Stock in, or all or substantially all of the assets
of, such Restricted Subsidiary; provided that (a) such sale or disposition of
such Capital Stock or assets is otherwise in compliance with the terms of this
Indenture and (b) such assumption, guarantee or other liability of such
Restricted Subsidiary has been released by the holders of the other Indebtedness
so guaranteed.
SECTION 4.20. Conduct of Business of the Company and the Co-Issuer.
The Company and its Restricted Subsidiaries will not engage in any businesses
which are not the same, similar or reasonably related to the businesses in which
the Company and its Restricted Subsidiaries are engaged on the Issue Date.
Co-Issuer will not own any operating assets or conduct any business other than
to own equity interests in the Company and serve as an issuer and an obligor on
the Notes.
ARTICLE FIVE
MERGERS; SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets.
The Company will not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless: (i) either (1) the Company shall be the surviving or continuing
entity or (2) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale, assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall be
a corporation or a partnership or a limited liability company, in each case
organized and validly existing under the laws of the United States or any State
thereof or the District of Columbia and (y) shall expressly assume, by
supplemental Indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, this Indenture and the Registration
Rights Agreement on the part of the Company to be performed or observed,
provided that at any time the Company or its successor is a limited liability
company, there shall be a co-issuer of the Notes that is a corporation; (ii)
immediately after giving effect to such transaction and the assumption
contemplated by clause (i)(2)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction), the Company or such
Surviving Entity, as the case may be, shall be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.04; (iii) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y) above
(including, without limitation, giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred and any Lien granted in
connection with or in respect of the transaction), no Default or Event of
Default shall have occurred or be continuing; and (iv) the Company or the
Surviving Entity shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation,
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merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental Indenture is required in connection with such transaction,
such supplemental Indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied. Notwithstanding the foregoing clauses (ii) and
(iii), (a) any Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to the Company or to another
Restricted Subsidiary and (b) the Company may merge with or transfer all of its
properties and assets to an Affiliate incorporated or formed solely for the
purpose of either reforming the Company in another State of the United States or
changing the legal structure of the Company to a corporation so long as the
amount of Indebtedness of the Company and its Restricted Subsidiaries is not
increased thereby (it being understood that after the transfer of such property
and assets for the purpose of changing its legal structure to a corporation, the
Company may dissolve).
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 5.02. Successor Substituted.
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of the Company in accordance with Section
5.01, in which the Company is not the continuing corporation, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such surviving entity
had been named as such herein.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default" for purposes of
this Indenture:
(i) the failure to pay interest on any Notes when the same becomes
due and payable and the default continues for a period of 30 days (whether
or not such payment shall be prohibited by the subordination provisions of
this Indenture);
(ii) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds Offer
which has actually been made) (whether or not such payment shall be
prohibited by the subordination provisions of this Indenture);
(iii) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default continues
for a period of 60 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from
the Trustee or
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the Holders of at least 25% of the outstanding principal amount of the
Notes (except in the case of a default with respect to Section 5.01, which
will constitute an Event of Default with such notice requirement but
without such passage of time requirement);
(iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise
cured within 20 days of receipt by the Company or such Restricted
Subsidiary of notice of any such acceleration) if the aggregate principal
amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated, aggregates $10.0 million or more
at any time;
(v) one or more judgments in an aggregate amount in excess of $10.0
million shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable;
(vi) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law: (a) admits in writing its inability to
pay its debts generally as they become due; (b) commences a voluntary case
or proceeding; (c) consents to the entry of an order for relief against it
in an involuntary case or proceeding; (d) consents or acquiesces in the
institution of a bankruptcy or insolvency proceeding against it; (e)
consents to the appointment of a Custodian of it or for all or
substantially all of its property; or (f) makes a general assignment for
the benefit of its creditors, or any of them takes any action to authorize
or effect any of the foregoing; or
(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (a) is for relief against the Company or
any Significant Subsidiary in an involuntary case or proceeding; (b)
appoints a Custodian of the Company or any Significant Subsidiary for all
or substantially all of its property; or (c) orders the liquidation of the
Company or any Significant Subsidiary; and in each case the order or
decree remains unstayed and in effect for 60 days; provided, however, that
if the entry of such order or decree is appealed and dismissed on appeal,
then the Event of Default hereunder by reason of the entry of such order
or decree shall be deemed to have been cured.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (vi) or (vii) of Section 6.01 with respect to the Company) shall occur
and be continuing, the Trustee or the Holders of at least 25% in principal
amount of outstanding Notes may declare the principal of and accrued interest on
all the Notes to be due and payable by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Agreement, shall become immediately due and payable upon the first to
occur of an acceleration under the Credit Agreement or 5 business days after
receipt by the Company and the Representative under the Credit Agreement of such
Acceleration Notice but only if such Event of Default is then continuing. If an
Event of Default specified in clause (vi) or (vii) of Section 6.01 with respect
to the Company occurs and is continuing, then all unpaid principal of, and
premium, if
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any, and accrued and unpaid interest on all of the outstanding Notes shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the then outstanding Notes may rescind and cancel such
declaration and its consequences (i) if the rescission would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of principal or interest that has become due solely
because of the acceleration, (iii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid but only if such Event of Default is then continuing, and (iv) if the
Issuers have paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy maturing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 10.02, the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes by
written notice to the Trustee may waive an existing Default or Event of Default
and its consequences, except a continuing Default in the payment of the
principal of or interest on any Notes. The Issuers shall deliver to the Trustee
an Officers' Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. In case of any
such waiver, the Issuers, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Notes, respectively. This
paragraph of this Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the
TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from
this Indenture and the Notes, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Notes, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direc-
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tion that conflicts with law or this Indenture that the Trustee determines may
be unduly prejudicial to the rights of another Holder, or that may involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against any loss or expense caused by
taking such action or following such direction. This Section 6.05 shall be in
lieu of Section 316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of the
TIA is hereby expressly excluded from this Indenture and the Notes, as permitted
by the TIA.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
the outstanding Notes make a written request to the Trustee to pursue a
remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) 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
(v) 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
which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and premium, if any, or interest
on a Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified
in Section 6.01(i) or (ii) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuers
or any other obligor on the Notes for the whole amount of principal and accrued
interest remaining unpaid, together with interest overdue on principal and to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Notes
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
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SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Issuers (or any
other obligor upon the Notes), their respective creditors or their respective
property and shall be entitled and empowered to participate as a member, voting
or otherwise, of any official committee of creditors appointed in such matter
and to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same, and any Custodian in any such
judicial proceedings is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Third: to the Issuers.
The Trustee, upon prior written notice to the Issuers, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount of
the outstanding Notes, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Notes on or after
the respective due dates expressed in the Note.
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ARTICLE SEVEN
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 their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default actually
known to the Trustee:
(1) The Trustee and the Agents shall not be liable except for the
performance of such duties as are specifically set forth in the TIA or
herein; and
(2) In the absence of bad faith on its part, the Trustee or any
Agent 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 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 or any Agent, the Trustee or such Agent shall examine such
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) Neither the Trustee nor any Agent shall be liable for any error
of judgment made in good faith by a Trust Officer or officer of the Agent,
unless it is proved that the Trustee or such Agent was negligent in
ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee or any
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of such
funds is not assured to it or it does not receive from such Holders an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which might be incurred by it in compliance with such request or
direction.
(e) Whether or not herein expressly so provided every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) Neither the Trustee nor any Agent shall be liable for interest
on any money received by it except as the Trustee may agree in writing with the
Issuers. Money held in trust by the Trustee or any Agent need not be segregated
from other funds except to the extent required by law.
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SECTION 7.02. Rights of Trustee and Agents.
Subject to Section 7.01:
(a) The Trustee and each Agent may rely on any document believed by
it to be genuine and to have been signed or presented by the proper
person. Neither the Trustee nor any Agent need investigate any fact or
matter stated in the document.
(b) Before the Trustee or any Agent acts or refrains from acting, it
may require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to the provisions of Section 13.05. Neither the Trustee nor
any Agent shall be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee and any Agent may act through attorneys and agents
of its selection and shall not be responsible for the misconduct or
negligence of any agent or attorney (other than an agent who is an
employee of the Trustee) appointed with due care.
(d) Neither the Trustee nor any Agent shall be liable for any action
it takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers conferred upon it by this
Indenture.
(e) The Trustee and any Agent may consult with counsel of its
selection and the advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) Any request or direction of the Issuers mentioned herein shall
be sufficiently evidenced by an Officers' Certificate and any resolution
of the Board of Directors may be sufficiently evidenced by a Board
Resolution.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(h) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuers, personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event of
Default unless a Trust Officer of the Trustee has actual knowledge thereof
or unless the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.
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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 Issuers or their
respective Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
Neither the Trustee nor any Agent shall be responsible for and makes
any representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Company's use of the proceeds from
the Notes, and it shall not be responsible for any statement of the Issuers or
the Company in this Indenture or any document issued in connection with the sale
of Notes or any statement in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default, the Trustee shall mail to
each Holder notice of the Default or Event of Default within 30 days after the
occurrence thereof. Except in the case of a Default or an Event of Default in
payment of principal of or interest on any Note or a Default or Event of Default
in complying with Section 5.01, the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interest of Holders. This Section 7.05 shall be
in lieu of the proviso to Section 315(b) of the TIA and such proviso to Section
315(b) of the TIA is hereby expressly excluded from this Indenture and the
Notes, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each July 1
beginning with the July 1 following the date of this Indenture, the Trustee
shall mail to each Holder a report dated as of such July 1 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), (c) and
(d).
A copy of each such report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange, if any, on which the Notes
are listed.
The Issuers shall promptly notify the Trustee in writing if the
Notes become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Issuers shall pay to the Trustee and any Agent as such from time
to time such compensation as the Issuers and the Trustee or such Agent shall
from time to time agree in writing for its services. The Trustee's and the
Agent's compensation shall not be limited by any law on compensation of a
trustee of an express trust. Except as otherwise provided herein, the Issuers
shall reimburse the Trustee and any Agent upon request for all reasonable
disbursements, expenses and advances (including fees, disbursements and expenses
of its agents and counsel) incurred or made by them in addition to the
compensation for their services except any
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such disbursements, expenses and advances as may be attributable to the
Trustee's negligence or bad faith. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's and Agent's
accountants, experts and counsel (a) in connection with the preparation,
execution and delivery of this Indenture, any waiver or consent hereunder, any
modification or termination hereof, or any Event of Default or alleged Event of
Default; (b) if an Event of Default occurs in connection with such Event of
Default and collection, bankruptcy, insolvency or other enforcement proceedings
relating thereto; (c) in connection with the administration of the Trustee's
rights pursuant hereto; or (d) in connection with any removal of the Trustee
pursuant to Section 7.08 hereof and any taxes or other expenses incurred by a
trust created pursuant to Section 9.01 hereof.
The Issuers shall indemnify the Trustee and the Agents for, and hold
them harmless against any and all loss, damage, claims, liability or expense,
including taxes (other than franchise taxes imposed on the Trustee and taxes
based upon, measured by or determined by the income of the Trustee), arising out
of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Trustee and the Agents shall notify the Issuers
promptly of any claim asserted against the Trustee or any agent for which they
may seek indemnity. However, the failure by the Trustee or any agent to so
notify the Issuers shall not relieve the Issuers of their obligations hereunder.
The Issuers shall defend the claim and the Trustee and the Agents shall
cooperate in the defense (and may employ its own counsel) at the Issuers'
expense; provided, however, that the Issuers' reimbursement obligation with
respect to counsel employed by the Trustee and the Agents will be limited to the
reasonable fees and expenses of such counsel.
The Issuers need not pay for any settlement made without their
written consent, which consent shall not be unreasonably withheld or delayed.
The Issuers need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or any agent as a result of the violation of
this Indenture by the Trustee or any agent.
To secure the Issuers' payment obligations in this Section 7.07, the
Trustee and the Agents shall have a Lien prior to the Notes against all money or
property held or collected by the Trustee and the Agents, in their capacity as
Trustee or Agent, except money or property held in trust to pay principal of or
interest on particular Notes.
When the Trustee or an agent incurs expenses or renders services
after an Event of Default specified in Section 6.01(vi) or (vii) occurs, the
expenses (including the reasonable fees and expenses of its agents and counsel)
and the compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Issuers' obligations
under this Section 7.07 and any claim arising hereunder shall survive the
resignation or removal of any Trustee or any agent, the discharge of the
Issuers' obligations pursuant to Article Nine and any rejection or termination
under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuers in
writing. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Issuers in
writing and may appoint a successor Trustee with the Issuers' consent. The
Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
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(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 other 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 Trustee in such event being referred to
herein as the retiring Trustee), the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition, at the expense of the Issuers, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuers' obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee, provided that such successor is otherwise eligible hereunder.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible
to act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. If the Trustee has or
shall acquire any "conflicting interest" within the meaning of TIA Section
310(b), the Trustee and the Issuers shall comply with the provisions of TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
Notes or certificates of interest or participation in other Notes of the Issuers
are outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. If at any time
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the Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.10, the Trustee shall resign immediately in the manner and with the
effect hereinbefore specified in this Article Seven.
SECTION 7.11. Preferential Collection of Claims Against Issuers.
The Trustee shall comply with 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 EIGHT
SUBORDINATION OF NOTES
SECTION 8.01. Notes Subordinated to Senior Debt.
The Issuers covenant and agree, and the Trustee and each Holder of
the Notes by his acceptance thereof likewise covenant and agree, that all Notes
shall be issued subject to the provisions of this Article Eight; and each person
holding any Note, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees that all payments of the principal of and
interest on the Notes by the Issuers shall, to the extent and in the manner set
forth in this Article Eight, be subordinated and junior in right of payment to
the prior payment in full in cash or Cash Equivalents of all amounts payable
under Senior Debt of the Issuers.
SECTION 8.02. No Payment on Notes in Certain Circumstances.
If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by acceleration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior Debt, no
payment of any kind or character shall be made by or on behalf of either of the
Issuers or any other Person on either of their behalf with respect to any
Obligations on the Notes or to acquire any of the Notes for cash or property or
otherwise (except that holders of the Notes may receive payments from a trust
described under Article Nine so long as, on the date or dates the respective
amounts were paid into the trust, such payments were made with respect to the
Notes without violating the provisions of Article Eight or Article Twelve of
this Indenture (a "Defeasance Trust Payment")).
In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Debt, as such event of default is defined
in the instrument creating or evidencing such Designated Senior Debt, permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of the event of default to the
Trustee (a "Payment Blockage Notice"), then, unless and until all events of
default have been cured or waived or have ceased to exist or the Trustee
receives notice from the Representative for the respective issue of Designated
Senior Debt terminating the Payment Blockage Period, during the 180 days after
the delivery of such Payment Blockage Notice (the "Payment Blockage Period"),
neither of the Issuers nor any other Person on either of their behalf shall (x)
make any payment of any kind or character with respect to any Obligations on the
Notes or (y) acquire any of the Notes for cash or property or otherwise (except
that holders of the Notes may receive Defeasance Trust Payments).
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Notwithstanding anything herein to the contrary, in no event will a
Payment Blockage Period extend beyond 180 days from the date the payment on the
Notes was due and only one such Payment Blockage Period may be commenced within
any 360 consecutive days. No event of default which existed or was continuing on
the date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Debt shall be, or be made, the basis for commencement of a
second Payment Blockage Period by the Representative of such Designated Senior
Debt whether or not within a period of 360 consecutive days, unless such event
of default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period commencing after the date of
commencement of such Payment Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets of either of the
Issuers of any kind or character, whether in cash, property or securities, to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of either of the
Issuers or in a bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to either of the Issuers or their respective
property, whether voluntary or involuntary, all Obligations due or to become due
upon all Senior Debt shall first be paid in full in cash or Cash Equivalents, or
such payment duly provided for to the satisfaction of the holders of Senior
Debt, before any payment or distribution of any kind or character is made on
account of any Obligations on the Notes, or for the acquisition of any of the
Notes for cash or property or otherwise (except that holders of the Notes may
receive Defeasance Trust Payments). Before any payment may be made by, or on
behalf of, such Issuers of the principal of, premium, if any, or interest on the
Notes upon any such dissolution or winding-up or total liquidation or
reorganization, any payment or distribution of assets or securities of such
Issuers of any kind or character, whether in cash, property or securities
(excluding any Defeasance Trust Payment), to which the Holders of the Notes or
the Trustee on their behalf would be entitled, but for the subordination
provisions of this Indenture, shall be made by such Issuers or by any receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, directly to the holders of the Senior Debt of such
Issuers (pro rata to such holders on the basis of the respective amounts of
Senior Debt held by such holders) or their representatives or to the trustee or
trustees or agent or agents under any agreement or indenture pursuant to which
any of such Senior Debt may have been issued, as their respective interests may
appear, to the extent necessary to pay all such Senior Debt in full in cash
after giving effect to any prior or concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Issuers of any kind or character, whether in cash, property
or securities (excluding any Defeasance Trust Payment), shall be received by the
Trustee or any Holder of Notes at a time when such payment or distribution is
prohibited by Section 8.03(a) and before all obligations in respect of Senior
Debt of such Issuers are paid in full in cash or Cash Equivalents, such payment
or distribution shall be received and held for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt of such Issuers (pro rata to
such holders on the basis of the respective amounts of Senior Debt held by such
holders) or their respective representatives, or to the trustee or trustees or
agent or agents under any indenture pursuant to which any of such Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of such Senior Debt remaining unpaid until all such Senior Debt
has been paid in full in cash or Cash Equivalents after giving effect to any
prior or concurrent payment, distribution or provision therefor to or for the
holders of such Senior Debt.
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The consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 8.03
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
SECTION 8.04. Subrogation.
Upon the payment in full in cash or Cash Equivalents of all Senior
Debt of the Issuers, or provision for payment, the Holders of the Notes shall be
subrogated to the rights of the holders of such Senior Debt to receive payments
or distributions of cash, property or securities of the Issuers made on such
Senior Debt until the principal of and interest on the Notes shall be paid in
full in cash or Cash Equivalents; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of the Issuers of
any cash, property or securities to which the Holders of the Notes or the
Trustee on their behalf would be entitled except for the provisions of this
Article Eight, and no payment over pursuant to the provisions of this Article
Eight to the holders of Senior Debt of the Issuers by Holders of the Notes or
the Trustee on their behalf shall, as between an Issuer, its creditors other
than holders of Senior Debt of such Issuer, and the Holders of the Notes, be
deemed to be a payment by such Issuers to or on account of the Senior Debt of
such Issuers. It is understood that the provisions of this Article Eight are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Notes, on the one hand, and the holders of the Senior Debt of the
Issuers, on the other hand.
If any payment or distribution to which the Holders of the Notes
would otherwise have been entitled but for the provisions of this Article Eight
shall have been applied, pursuant to the provisions of this Article Eight, to
the payment of all amounts payable under Senior Debt, then and in such case, the
Holders of the Notes shall be entitled to receive from the holders of such
Senior Debt any payments or distributions received by such holders of Senior
Debt in excess of the amount required to make payment in full in cash of such
Senior Debt.
SECTION 8.05. Obligations of Issuers Unconditional.
Nothing contained in this Article Eight or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as among the Issuers
and the Holders, the obligation of the Issuers, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the Notes
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Issuers other than the holders of the Senior Debt of the
Issuers, nor shall anything herein or therein prevent any Holder or the Trustee
on their behalf from exercising all remedies otherwise permitted by applicable
law upon default or Event of Default, subject to the rights, if any, under this
Article Eight of the holders of the Senior Debt of the Issuers in respect of
cash, property or securities of the Issuers received upon the exercise of any
such remedy.
Without limiting the generality of the foregoing, nothing contained
in this Article Eight shall restrict the right of the Trustee or the Holders to
take any action to declare the Notes to be due and payable prior to their stated
maturity pursuant to Section 6.02 or to pursue any rights or remedies hereunder;
provided, however, that all Senior Debt of the Issuers then due and payable
shall first be paid in full in cash or Cash Equivalents before the Holders or
the Trustee are entitled to receive any direct or indirect payment from the
Issuers of principal of or interest on the Notes.
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SECTION 8.06. Notice to Trustee and Paying Agent.
The Issuers shall give prompt written notice to the Trustee and the
Paying Agent of any fact known to the Issuers which would prohibit the making of
any payment to or by the Trustee or the Paying Agent in respect of the Notes
pursuant to the provisions of this Article Eight. Neither the Trustee nor the
Paying Agent shall be charged with knowledge of the existence of any event of
default with respect to any Senior Debt of the Issuers or of any other facts
which would prohibit the making of any payment to or by the Trustee or the
Paying Agent unless and until the Trustee shall have received notice in writing
at its Corporate Trust Office to that effect signed by an Officer of an Issuer,
or by a holder of Senior Debt or trustee or agent therefor; and prior to the
receipt of any such written notice, the Trustee and the Paying Agent shall,
subject to Article Seven, be entitled to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 8.06 at least two Business Days prior to the date
upon which by the terms of this Indenture any moneys shall become payable for
any purpose (including, without limitation, the payment of the principal of or
interest on any Note), then, regardless of anything herein to the contrary, the
Trustee and the Paying Agent shall have full power and authority to receive any
moneys from the Issuers and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date. Nothing contained in this Section
8.06 shall limit the right of the holders of Senior Debt of the Issuers to
recover payments as contemplated by Section 8.03. Each of the Trustee and the
Paying Agent shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself or itself to be a holder of any Senior Debt of
the Issuers (or a trustee on behalf of, or other representative of, such holder)
to establish that such notice has been given by a holder of such Senior Debt or
a trustee or representative on behalf of any such holder.
In the event that either the Trustee or the Paying Agent determines
in good faith that any evidence is required with respect to the right of any
Person as a holder of Senior Debt of the Issuers to participate in any payment
or distribution pursuant to this Article Eight, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee or the
Paying Agent, as the case may be, as to the amount of Senior Debt of the Issuers
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Eight, and if such evidence is not furnished, the
Trustee and the Paying Agent may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities referred to
in this Article Eight, the Trustee and the Holders of the Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the Notes
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt of the Issuers and other
indebtedness of a Issuers, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Eight.
SECTION 8.08. Trustee's Relation to Senior Debt.
The Trustee, the Agents and any other Agent shall be entitled to all
the rights set forth in this Article Eight with respect to any Senior Debt of
the Issuers which may at any time be held by it in its individual
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or any other capacity to the same extent as any other holder of Senior Debt of
an Issuer, and nothing in this Indenture shall deprive the Trustee, the Agents
or any other Agent of any of its rights as such holder.
With respect to the holders of Senior Debt of an Issuer, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Eight, and no implied covenants or
obligations with respect to the holders of Senior Debt of the Issuers 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 of the Issuers. The Trustee
shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Notes or to the Issuers or to
any other person cash, property or securities to which any holders of Senior
Debt of the Issuers shall be entitled by virtue of this Article Eight or
otherwise.
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of the
Issuers or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt of the
Issuers to enforce subordination as provided herein shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the
Issuers or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Issuers with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or otherwise be charged
with. The provisions of this Article Eight are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Debt of the
Issuers.
SECTION 8.10. Holders Authorize Trustee To Effectuate Subordination of Notes.
Each Holder of Notes by his acceptance of such Notes authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Eight, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of the Issuers (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Issuers, the filing of a claim for the unpaid balance of its or his Notes
in the form required in those proceedings.
SECTION 8.11. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Eight shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (a), (b) or (c) of Section 6.01.
SECTION 8.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article Eight shall apply to amounts due to the
Trustee or the Agents pursuant to other sections in this Indenture.
SECTION 8.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09, the
holders of Senior Debt of the Issuers may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in
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this Article Eight or the obligations hereunder of the Holders to the holders of
Senior Debt of an Issuer, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Debt or any instrument evidencing the same or any agreement
under which such Senior Debt is outstanding or secured; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Debt; (c) release any Person liable in any manner for the
collection of such Senior Debt; and (d) exercise or refrain from exercising any
rights against the Issuers and any other Person.
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in Trust for
Holders.
All money and United States Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Article Nine shall be
for the sole benefit of the Holders and shall not be subject to this Article
Eight.
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Termination of the Issuers' Obligations.
The Issuers may terminate their obligations under the Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 9.01, if all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid or Notes
for whose payment United States Legal Tender or non-callable United States
Government Obligations, or a combination thereof, has theretofore been deposited
with the Trustee or the Paying Agent in trust or segregated and held in trust by
the Issuers and thereafter repaid to the Issuers, as provided in Section 9.05)
have been delivered to the Trustee for cancellation and the Issuers have paid
all sums payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Issuers shall have
given notice to the Trustee and mailed a notice of redemption to each
Holder of the redemption of all of the Notes under arrangements
satisfactory to the Trustee for the giving of such notice or (ii) all
Notes have otherwise become due and payable hereunder;
(b) the Issuers shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, United States Legal Tender or
non-callable United States Government Obligations, or a combination
thereof, in such amount as is sufficient without consideration of
reinvestment of such interest, to pay principal and interest on the
outstanding Notes to maturity or redemption, as well as the Trustee's fees
and expenses; provided that the Trustee shall have been irrevocably
instructed to apply such United States Legal Tender to the payment of said
principal and interest with respect to the Notes; provided, further, that
no deposits made pursuant to this Section 9.01(b) shall cause the Trustee
to have a conflicting interest as defined in and for the purposes of the
TIA; provided, further, that from and after the time of deposit, the money
deposited shall not be subject to the rights of holders of Senior Debt
pursuant to the provisions of Article Eight and provided, further, that,
as confirmed by an Opinion of
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Counsel, no such deposit shall result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(c) no Default or Event of Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any
other material instrument to which either of the Issuers is a party or by
which it is bound (other than a Default or Event of Default resulting from
the incurrence of Indebtedness, all or a portion of which will be used to
defease the Notes concurrently with such incurrence);
(d) the Issuers shall have paid all other sums payable by it
hereunder; and
(e) each of the Issuers shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for or relating to the termination of such
Issuer's obligations under the Notes and this Indenture have been complied
with. Such Opinion of Counsel shall also state that such satisfaction and
discharge does not result in a default under any agreement or instrument
then known to such counsel that binds or affects either of the Issuers.
Notwithstanding the foregoing paragraph, the Issuers' obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 9.05 and 9.06 shall survive
until the Notes are no longer outstanding pursuant to the last paragraph of
Section 2.08. After the Notes are no longer outstanding, the Issuers'
obligations in Sections 7.07, 9.05 and 9.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Issuers' obligations under the
Notes and this Indenture except for those surviving obligations specified above.
SECTION 9.02. Legal Defeasance and Covenant Defeasance.
(a) The Issuers may, at their option by Board Resolution of the
Board of Directors of each such Issuer, at any time, elect to have either
paragraph (b) or (c) below be applied to all outstanding Notes upon compliance
with the conditions set forth in Section 9.03.
(b) Upon exercise under paragraph (a) hereof of the option
applicable to this paragraph (b), each Issuer shall, subject to the satisfaction
of the conditions set forth in Section 9.03, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that each Issuer 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 9.04 hereof and the other Sections of this Indenture
referred to in (i) and (ii) 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 Issuers, shall execute proper instruments
acknowledging the same), and Holders of the Notes and any amounts deposited
under Section 9.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Eight or otherwise,
except for the following provisions, which shall survive until otherwise
terminated or discharged hereunder:
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(i) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 9.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of and
interest on such Notes when such payments are due;
(ii) the Issuers' obligations with respect to such Notes under
Article Two and Section 4.02 hereof;
(iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuers' obligations in connection therewith;
and
(iv) this Article Nine.
Subject to compliance with this Article Nine, the Issuers may exercise their
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) hereof.
(c) Upon the Issuers' exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), each Issuer shall, subject to the
satisfaction of the conditions set forth in Section 9.03 hereof, be released
from its obligations under the covenants contained in Sections 4.10 through 4.20
and Article Five 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) and Holders of the Notes and any amounts deposited under Section 8.03
hereof shall cease to be subject to any obligations to, or the rights of, any
holder of Senior Debt under Article Eight or otherwise. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding Notes, the
Issuers 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 or Default under Section 6.01(iii) hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Issuers' exercise under paragraph (a)
hereof of the option applicable to this paragraph (c), subject to the
satisfaction of the conditions set forth in Section 9.03 hereof, Sections
6.01(iii), 6.01(iv) and 6.01(v) shall not constitute Events of Default.
SECTION 9.03. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 9.02(b) or 9.02(c) hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit or cause to be deposited
with the Trustee, in trust, for the benefit of the Holders cash in United
States Legal Tender, non-callable United States Government Obligations, or
a combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest on the Notes on the
stated date for payment thereof or on the applicable redemption date, as
the case may be;
(b) in the case of Legal Defeasance, the Issuers shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Issuers
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have received from, or here has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of Covenant Defeasance, the Issuers shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Sections 6.01(vi) and
(vii) are 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 this Indenture or
any other material agreement or instrument to which the Issuers or any of
their Restricted Subsidiaries is a party or by which the Issuers or any of
their Restricted Subsidiaries is bound;
(f) each of the Issuers shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Issuers
with the intent of preferring the Holders over any other creditors of the
Issuers or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Issuers or others;
(g) each of the Issuers 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; and
(h) each of the Issuers shall have delivered to the Trustee an
Opinion of Counsel to the effect that (A) the trust funds will not be
subject to any rights of holders of Senior Debt, including, without
limitation, those arising under this Indenture and (B) 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.
Notwithstanding the foregoing, the Opinion of Counsel required by clause (b)
above with respect to a Legal Defeasance need not be delivered if all Notes not
theretofore delivered to the Trustee for cancellation (x) have become due and
payable or (y) will become due and payable on the maturity date within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense of, the Issuers.
SECTION 9.04. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust United States Legal
Tender or United States Government Obligations deposited with it pursuant to
Article Eight, and shall apply the deposited United States Legal Tender and the
money from United States Government Obligations in accordance with this
Indenture to
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the payment of principal of and interest on the Notes. The Trustee shall be
under no obligation to invest said United States Legal Tender or United States
Government Obligations except as it may agree with the Company.
The Issuers shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the United States Legal Tender or
United States Government Obligations deposited pursuant to Section 9.03 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 Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the Issuers'
request any United States Legal Tender or United States Government Obligations
held by it as provided in Section 9.03 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 9.03(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 9.05. Repayment to Issuers.
Subject to this Article Nine, the Trustee and the Paying Agent shall
promptly pay to the Issuers upon request any excess United States Legal Tender
or United States Government Obligations held by them at any time and thereupon
shall be relieved from all liability with respect to such money. The Trustee and
the Paying Agent shall pay to the Issuers upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years.
After payment to the Issuers, Holders entitled to such money must look to the
Issuers for payment as general creditors unless an applicable law designates
another Person.
SECTION 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
Legal Tender or United States Government Obligations in accordance with this
Article Nine by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuers' obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Nine until such time as the Trustee or Paying
Agent is permitted to apply all such United States Legal Tender or United States
Government Obligations in accordance with Article Nine; provided that if the
Issuers have made any payment of interest on or principal of any Notes because
of the reinstatement of their obligations, the Issuers shall be subrogated to
the rights of the Holders of such Notes to receive such payment from the United
States Legal Tender or United States Government Obligations held by the Trustee
or Paying Agent.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Issuers and each Guarantor, if any, when authorized by a
resolution of their respective Boards of Directors, and the Trustee may amend or
supplement this Indenture or the Notes without notice to or consent of any
Holder:
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(a) to cure any ambiguity, defect or inconsistency;
(b) to effect the assumption by a successor Person of all
obligations of the Company under the Notes and this Indenture in
connection with any transaction complying with Article Five of this
Indenture;
(c) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or
rights to the Holders;
(f) to make any other change that does not adversely affect the
rights of any Holder under this Indenture;
(g) to add to the covenants of the Company or any Guarantor, for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor;
(h) to secure the Notes pursuant to the requirements of Section 4.18
or otherwise; or
(i) to add a Guarantor pursuant to the requirements of Section 4.19;
provided, however, that the Issuers deliver to the Trustee an Opinion of Counsel
stating that such amendment or supplement does not adversely affect the rights
of any Holder and otherwise complies with the provisions of this Section 10.01.
SECTION 10.02. With Consent of Holders.
Subject to Section 6.07, the Issuers and each Guarantor, if any,
when authorized by a resolution of their respective Boards of Directors, and the
Trustee may amend or supplement this Indenture or the Notes, or waive compliance
with any provision hereof or thereof, with the written consent of the Holders of
at least a majority in principal amount of the outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for the
Notes). However, without the consent of each Holder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(a) reduce the amount of Notes whose Holders must consent to an
amendment;
(b) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest, on any Notes;
(c) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption or reduce the redemption price therefor;
(d) make any Notes payable in money other than that stated in the
Notes;
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(e) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal amount of
Notes to waive Defaults or Events of Default;
(f) after the Company's obligation to purchase Notes arises
hereunder, amend, change or modify in any material respect the obligation
of the Company to make and consummate a Change of Control Offer in the
event of a Change of Control or make and consummate a Net Proceeds Offer
with respect to any Asset Sale that has been consummated or, after such
Change of Control has occurred or such Asset Sale has been consummated,
modify any of the provisions or definitions with respect thereto; or
(g) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Notes in a
manner which adversely affects the Holders.
It shall not be necessary for the consent of the Holders under this
Section 10.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 10.02
becomes effective, the Issuers shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of that Note or portion of that Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Note or portion of
such Note by notice to the Trustee or the Issuers received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Notes have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (a)
through (g) of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Note who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note.
SECTION 10.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Issuers or the Trustee so
determine, the Issuers in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 10.06. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes the legal, valid and binding obligation of the Issuers and
each Guarantor, if any, enforceable in accordance with its terms (subject to
customary exceptions). The Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise. In signing any
amendment, supplement or waiver, the Trustee shall be entitled to receive an
indemnity reasonably satisfactory to it and to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Ten is authorized or permitted by this
Indenture and that such amendment or supplement is the legal, valid and binding
obligation of the Issuer enforceable against it in accordance with its terms,
subject to customary exceptions, and complies with the provision hereof
(including Section 10.04). Such Opinion of Counsel shall not be an expense of
the Trustee.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Guarantor, if any, hereby unconditionally guarantees to each
Holder of a Note authenticated by the Trustee and to the Trustee and its
successors and assigns that: the principal of and interest on the Notes will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise, and interest on the overdue principal
and interest on any overdue interest on the Notes and all other obligations of
the Issuers to the Holders or the Trustee hereunder or under the Notes will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; subject, however, to the limitations set forth in Section 11.03. Any
Guarantee set forth in this Section 11.01 is a guarantee of payment and not of
collection. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or
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thereof, the recovery of any judgment against the Issuers, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of such 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 Issuers, any right to require a
proceeding first against an Issuer, protest, notice and all demands whatsoever.
Each Guarantor covenants that the applicable Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and
this Indenture. Notwithstanding the foregoing sentence, any Guarantor shall be
released from all the obligations under its Guarantee under this Article Eleven
concurrently with the defeasance of the Notes under Section 9.02(b) or the
Covenant Defeasance of the Notes under Section 9.02(c). If any Holder or the
Trustee is required by any court or otherwise to return to the Issuers or any
Guarantor or any custodian, trustee, liquidator or other similar official acting
in relation to the Issuers or a Guarantor, any amount paid by the Issuers or a
Guarantor to the Trustee or such Holder, the applicable Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between such Guarantor, 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 Six for
the purpose of the applicable Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall become due and payable by such Guarantor for the purpose of the applicable
Guarantee.
SECTION 11.02. Severability.
In case any provision of this Article Eleven shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Limitation of Guarantor's Liability.
Each Guarantor, if any, and by its acceptance hereof each Holder and
the Trustee, hereby confirm that it is the intention of all such parties that
the applicable Guarantee does not constitute a fraudulent transfer or conveyance
for purposes of title 11 of the United States Code, as amended, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
U.S. Federal or state or other applicable law. To effectuate the foregoing
intention, each Holder and each Guarantor hereby irrevocably agree that the
obligations of a Guarantor under its Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor, and after giving effect to any collections from
or payments made by or on behalf of such Guarantor in respect of the obligations
of such Guarantor pursuant to Section 11.04, result in the obligations of such
Guarantor not constituting such a fraudulent transfer or conveyance.
SECTION 11.04. Execution of Guarantee.
To further evidence a Guarantee to the Holders, each Guarantor, if
any, hereby agrees to execute a guarantee to be endorsed on and made a part of
each Note ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its guarantee set forth in Section 11.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a guarantee. Each such guarantee shall be signed on behalf of each
Guarantor by its Chairman of the Board, its President or one of its Vice
Presidents prior to the authentication of the Note on which it is endorsed, and
the delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such guarantee on behalf of such
Guarantor. Such signature upon the guarantee may be a manual or facsimile
signature of such officer and may be imprinted
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or otherwise reproduced on the guarantee, and in case such officer who shall
have signed the guarantee shall cease to be such officer before the Note on
which such guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Issuers, such Note nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
guarantee had not ceased to be such officer of such Guarantor.
SECTION 11.05. Subordination of Subrogation and Other Rights.
Each Guarantor, if any, hereby agrees that any claim against the
Issuers that arises from the payment, performance or enforcement of such
Guarantor's obligations under the applicable Guarantee or this Indenture,
including, without limitation, any right of subrogation, shall be subject and
subordinate to, and no payment with respect to any such claim of such Guarantor
shall be made before, the payment in full in cash of all outstanding Notes in
accordance with the provisions provided therefor in this Indenture.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated to Senior Debt.
Each Guarantor, if any, covenants and agrees, and the Trustee and
each Holder of the Notes by its acceptance thereof likewise covenant and agrees,
that the Guarantee shall be issued subject to the provisions of this Article
Twelve; and each person holding any Note, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all payments
of the principal of and interest on the Notes pursuant to the Guarantee made by
or on behalf of the Guarantor shall, to the extent and in the manner set forth
in this Article Twelve, be subordinated and junior in right of payment to the
prior payment in full in cash or Cash Equivalents of all amounts payable under
Senior Debt of such Guarantor.
SECTION 12.02. No Payment in Certain Circumstances; Payment Over of
Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding up, reorganization, assignment for
the benefit of creditors or marshaling of assets of such Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to such Guarantor or its property, whether voluntary or involuntary,
all Obligations due or to become due upon all Senior Debt shall first be paid in
full in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Senior Debt, before any payment or distribution
of any kind or character is made by or on behalf of such Guarantor on account of
any Obligations on the Guarantee or for the acquisition of any of the Notes for
cash or property or otherwise (except that holders of the Notes may receive
Defeasance Trust Payments). Before any payment may be made by, or on behalf of,
any Guarantor of the principal of, premium, if any, or interest on the Notes
upon any such dissolution or winding-up or total liquidation or reorganization,
any payment or distribution of assets or securities of such Guarantor of any
kind or character, whether in cash, property or securities, to which the Holders
of the Notes or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by the Guarantor or by
any receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, directly to the holders of the Senior Debt
of such Guarantor
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(pro rata to such holders on the basis of the respective amounts of such Senior
Debt held by such holders) or their representatives or to the trustee or
trustees or agent or agents under any agreement or indenture pursuant to which
any of such Senior Debt may have been issued, as their respective interests may
appear, to the extent necessary to pay all such Senior Debt in full in cash
after giving effect to any prior or concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of any Guarantor of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder of Notes
at a time when such payment or distribution is prohibited by Section 12.02(a)
and before all obligations in respect of the Senior Debt of such Guarantor are
paid in full in cash or Cash Equivalents, such payment or distribution shall be
received and held for the benefit of, and shall be paid over or delivered to,
the holders of such Senior Debt (pro rata to such holders on the basis of the
respective amounts of such Senior Debt held by such holders) or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of such
Senior Debt remaining unpaid until all such Senior Debt has been paid in full in
cash or Cash Equivalents after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Senior Debt.
The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
any Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the terms
and conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by acceleration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior Debt, no
payment of any kind or character shall be made by or on behalf of any Guarantor
or any other Person on its behalf with respect to any Obligations on the
applicable Guarantee or to acquire any of the Notes for cash or property or
otherwise (except that holders of the Notes may receive Defeasance Trust
Payments).
In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Debt, as such event of default is defined
in the instrument creating or evidencing such Designated Senior Debt, permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives a Payment Blockage Notice to the Trustee, then,
unless and until all events of default have been cured or waived or have ceased
to exist or the Trustee receives notice from the Representative for the
respective issue of Designated Senior Debt terminating the Payment Blockage
Period, during the Payment Blockage Period, no Guarantor or any other Person on
such Guarantor's behalf, shall (x) make any payment of any kind or character
with respect to any Obligations on the applicable Guarantee or (y) acquire any
of the Notes for cash or property or otherwise (except that holders of the Notes
may receive Defeasance Trust Payments).
Notwithstanding anything herein to the contrary, in no event will a
Payment Blockage Period extend beyond 180 days from the date the Payment
Blockage Notice is delivered and only one such Payment Blockage Period may be
commenced within any 360 consecutive days. No event of default which existed or
was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Desig-
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nated Senior Debt shall be, or be made, the basis for commencement of a second
Payment Blockage Period by the Representative of such Designated Senior Debt
whether or not within a period of 360 consecutive days, unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period commencing after the date of
commencement of such Payment Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
SECTION 12.03. Subrogation.
Upon the payment in full in cash or Cash Equivalents of all Senior
Debt of a Guarantor, or provision for payment, the Holders of the Notes shall be
subrogated to the rights of the holders of such Senior Debt to receive payments
or distributions of cash, property or securities of such Guarantor made on such
Senior Debt until the principal of and interest on the Notes shall be paid in
full in cash or Cash Equivalents; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Debt of any cash,
property or securities to which the Holders of the Notes or the Trustee on their
behalf would be entitled except for the provisions of this Article Twelve, and
no payment over pursuant to the provisions of this Article Twelve to the holders
of such Senior Debt by Holders of the Notes or the Trustee on their behalf
shall, as between such Guarantor, its creditors other than holders of such
Senior Debt, and the Holders of the Notes, be deemed to be a payment by such
Guarantor to or on account of such Senior Debt. It is understood that the
provisions of this Article Twelve are and are intended solely for the purpose of
defining the relative rights of the Holders of the Notes, on the one hand, and
the holders of Senior Debt of any such Guarantor on the other hand.
If any payment or distribution to which the Holders of the Notes
would otherwise have been entitled but for the provisions of this Article Twelve
shall have been applied, pursuant to the provisions of this Article Twelve, to
the payment of all amounts payable under Senior Debt of the Guarantors, then and
in such case, the Holders of the Notes shall be entitled to receive from the
holders of such Senior Debt any payments or distributions received by such
holders of Senior Debt in excess of the amount required to make payment in full
in cash of such Senior Debt.
SECTION 12.04. Obligations of Guarantors Unconditional.
Subject to Sections 11.03 and 8.02, nothing contained in this
Article Twelve or elsewhere in this Indenture or in the Notes is intended to or
shall impair, as among any Guarantor and the Holders of the Notes, the
obligation of such Guarantor, which is absolute and unconditional, to pay to the
Holders of the Notes the principal of and interest on the Notes as and when the
same shall become due and payable in accordance with the terms of the Guarantee,
or is intended to or shall affect the relative rights of the such Guarantor of
the Notes and creditors of any Guarantor other than the holders of Senior Debt
of such Guarantor, as the case may be, nor shall anything herein or therein
prevent the Holder of any Note or the Trustee on their behalf from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Twelve of the
holders of Senior Debt in respect of cash, property or securities of such
Guarantor received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained
in this Article Twelve shall restrict the right of the Trustee or the Holders of
Notes to take any action to declare the Notes to be due and payable prior to
their stated maturity pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided, however, that all Senior Debt of each Guarantor
then due and payable shall first be paid in full in cash or
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Cash Equivalents before the Holders of the Notes or the Trustee are entitled to
receive any direct or indirect payment from such Guarantor of principal of or
interest on the Notes pursuant to the Guarantee.
SECTION 12.05. Notice to Trustee and Paying Agent.
The Issuers shall give prompt written notice to the Trustee and the
Paying Agent of any fact known to them which would prohibit the making of any
payment to or by the Trustee or the Paying Agent in respect of the Notes
pursuant to the provisions of this Article Twelve. Neither the Trustee nor the
Paying Agent shall be charged with knowledge of the existence of any event of
default with respect to any Senior Debt of a Guarantor or of any other facts
which would prohibit the making of any payment to or by the Trustee or the
Paying Agent unless and until the Trustee shall have received notice in writing
at its Corporate Trust Office to that effect signed by an Officer of either of
the Issuers, or by a holder of Senior Debt of a Guarantor or trustee or agent
therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts exist.
Nothing contained in this Section 12.05 shall limit the right of the holders of
Senior Debt of a Guarantor to recover payments as contemplated by Section 12.03.
The Trustee and the Paying Agent shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself or itself to be a holder of
any Senior Debt of a Guarantor (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Senior Debt or a trustee or representative on behalf of any
such holder.
In the event that either the Trustee or the Paying Agent determines
in good faith that any evidence is required with respect to the right of any
Person as a holder of Senior Debt of a Guarantor to participate in any payment
or distribution pursuant to this Article Twelve, the Trustee or the Paying Agent
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee or the Paying Agent, as the case may be, as to the amount of Senior
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Twelve, and if such evidence is not
furnished, the Trustee and the Paying Agent may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article Twelve, the Trustee and the Holders of the
Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up, liquidation
or reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Notes for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Debt of such Guarantor and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve.
SECTION 12.07. Trustee's Relation to Senior Debt of a Guarantor.
The Trustee, the Agents and any other Agent of the Issuers shall be
entitled to all the rights set forth in this Article Twelve with respect to any
Senior Debt of a Guarantor which may at any time be held by them in their
individual or any other capacity to the same extent as any other holder of
Senior Debt of such Guarantor, and nothing in this Indenture shall deprive the
Trustee, the Agents or any other Agent of the Issuers of any of its rights as
such holder.
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With respect to the holders of Senior Debt of any Guarantor, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of such 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 of any Guarantor. The
Trustee shall not be liable to any such holders if the Trustee shall in good
faith mistakenly pay over or distribute to Holders of Notes or to the Issuers or
to any other person cash, property or securities to which any holders of Senior
Debt of a Guarantor shall be entitled by virtue of this Article Twelve or
otherwise.
SECTION 12.08. Subordination Rights Not Impaired by Acts or Omissions of Holders
of Senior Debt.
No right of any present or future holders of any Senior Debt of a
Guarantor to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of such
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by such Guarantor with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with. The provisions of this Article Twelve are intended to be for
the benefit of, and shall be enforceable directly by, the holders of Senior Debt
of any Guarantor.
SECTION 12.09. Holders Authorize Trustee To Effectuate Subordination of
Guarantee.
Each Holder of Notes by his acceptance of such Notes authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Twelve, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of any Guarantor, the filing of a claim for the unpaid
balance of its or his Notes in the form required in those proceedings.
SECTION 12.10. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Twelve shall not be
construed as preventing the occurrence of an Event of Default.
SECTION 12.11. Trustee's Compensation Not Prejudiced.
Nothing in this Article Twelve shall apply to amounts due to the
Trustee or the Agents pursuant to other sections in this Indenture.
SECTION 12.12. No Waiver of Guarantee Subordination Provisions.
Without in any way limiting the generality of Section 12.08, the
holders of Senior Debt of any Guarantor, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Notes to the holders of such Senior
Debt, do any one or more of the following: (a) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, such Senior Debt
or any instrument evidencing the same or any agreement under which such Senior
Debt is outstanding or secured; (b) sell, exchange, release or
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otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Debt; (c) release any Person liable in any manner for the collection of
such Senior Debt; and (d) exercise or refrain from exercising any rights against
the Guarantor and any other Person.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of any indenture subject to the TIA. If any provision of
this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified. If any
provision of this Indenture excludes any TIA provision that may be so excluded,
such TIA provision shall be excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 13.02. Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in person, by facsimile and confirmed by overnight
courier, or mailed by first-class mail addressed as follows:
if to the Issuers:
0 Xxxxxxx Xxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with copies to:
The Beacon Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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King & Spalding
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 or (000) 000-0000
if to the Trustee:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services/Generac
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Registrar:
Bankers Trust Company
0 Xxxxxx Xxxxxx
0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Services
Each party by notice to the others may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to
a Holder, including any notice delivered in connection with TIA Section 310(b),
TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed
to such Holder at the address as set forth on the list maintained pursuant to
Section 2.05 and shall be sufficiently given to him if so mailed within the time
prescribed. To the extent required by the TIA, any notice or communication shall
also be mailed to any Person described in TIA Section 313(c).
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. Except for
a notice to the Trustee, which is deemed given only when received, if a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
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SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to
take or refrain from taking any action under this Indenture after the date
hereof, the Issuers shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to
the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
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 include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.07. Governing Law.
This Indenture and the Notes will be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
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SECTION 13.08. No Recourse Against Others.
No director, officer, employee, stockholder or member as such of the
Issuers, or any Guarantor, shall have any liability for any obligations of the
Issuers or any Guarantor under the Notes or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
SECTION 13.09. Successors.
All agreements of a party to this Indenture contained in this
Indenture shall bind such party's successors.
SECTION 13.10. 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 13.11. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.13. Legal Holidays.
If a payment date is a not a Business Day at a place of payment,
payment may be made at that place on the next succeeding Business Day, and no
interest shall accrue for the intervening period.
[Signature Pages Follow]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
ISSUERS:
GENERAC PORTABLE PRODUCTS, LLC
By: /s/ [Illegible]
---------------------------------------
Name:
Title:
GPPW, INC.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name:
Title:
TRUSTEE:
MARINE MIDLAND BANK
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT A
[FORM OF SERIES A NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS
WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO AN
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE NOTE FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000 FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUERS' AND THE REGISTRAR'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
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GENERAC PORTABLE PRODUCTS, LLC
GPPW, INC.
11 1/4% Senior Subordinated Note
due 2006, Series A
CUSIP No.:[ ]
No. [ ] $[ ]
GENERAC PORTABLE PRODUCTS, LLC, a limited liability company (the
"Company", which term includes any successor), and GPPW, INC., a Wisconsin
corporation ("GPPW", which term includes any successor, and, together with the
Company, the "Issuers"), for value received jointly and severally promise to pay
to [ ] or registered assigns, the principal sum of [ ] Dollars, on July 1, 2006.
Interest Payment Dates: January 1 and July 1, commencing on
January 1, 1999.
Interest Record Dates: December 15 and June 15.
Reference is made to the further provisions of this Note contained
herein and the Indenture (as defined), which will for all purposes have the same
effect as if set forth at this place.
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IN WITNESS WHEREOF, each of the Issuers has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
GENERAC PORTABLE PRODUCTS, LLC
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
GPPW, INC.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
Dated: [ ]
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 11 1/4% Senior Subordinated Notes due 2006,
Series A, described in the within-mentioned Indenture.
Dated: [ ]
MARINE MIDLAND BANK,
as Trustee
By:______________________________________
Authorized Signatory
or
MARINE MIDLAND BANK,
as Trustee
By Bankers Trust Company,
as Authenticating Agent
By:______________________________________
Authorized Signatory
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(REVERSE OF NOTE)
GENERAC PORTABLE PRODUCTS, LLC
GPPW, INC.
11 1/4% Senior Subordinated Note
due 2006, Series A
1. Interest.
The Issuers jointly and severally promise to pay interest on the
principal amount of this Note at the rate per annum shown above. Cash interest
on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from July 9, 1998. The Issuers will pay
interest semi-annually in arrears on each Interest Payment Date, commencing
January 1, 1999. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
In addition, the Issuers shall pay interest on overdue principal
and on overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful from time to time on demand, in each case at the
rate borne by this Note.
The Notes are not entitled to the benefit of any mandatory sinking
fund.
2. Method of Payment.
The Issuers shall pay interest on the Notes (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Notes are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Issuers shall pay principal and
interest in United States Legal Tender (as defined in the Indenture referred to
below). However, the Issuers may pay principal and interest by wire transfer of
Federal funds (provided that the Paying Agent shall have received wire
instructions on or prior to the relevant Interest Record Date), or interest by
check payable in such United States Legal Tender. The Issuers may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
Initially, Bankers Trust Company will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without notice
to the Holders. The Issuers may, subject to certain exceptions, act as
Registrar.
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4. Indenture.
The Issuers issued the Notes under an Indenture, dated as of July
1, 1998 (the "Indenture"), by and among the Issuers and Marine Midland Bank, as
Trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Note is one of a duly authorized
issue of Notes of the Issuers designated as their 11-1/4% Senior Subordinated
Notes due 2006 issued under the Indenture. The aggregate principal amount of
Notes which may be issued under the Indenture is limited (except as otherwise
provided in the Indenture) to $160,000,000. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (the "TIA"), as in effect on the date of
the Indenture (except as otherwise indicated in the Indenture) until such time
as the Indenture is qualified under the TIA, and thereafter as in effect on the
date on which the Indenture is qualified under the TIA. Notwithstanding anything
to the contrary herein, the Notes are subject to all such terms, and holders of
Notes are referred to the Indenture and the TIA for a statement of them.
5. Subordination.
The Notes are unsecured obligations of the Issuers and are
subordinated in right of payment to all Senior Debt of the Issuers to the extent
and in the manner provided in the Indenture. Each Holder of a Note, by accepting
a Note, agrees to such subordination, authorizes the Trustee to give effect to
such subordination and appoints the Trustee as attorney-in-fact for such
purpose. The Notes will rank pari passu in right of payment with any future
senior subordinated indebtedness of the Issuers and will rank senior in right of
payment to any other subordinated obligations of the Issuers.
6. Optional Redemption.
The Notes will be redeemable, at the Issuers' option, in whole at
any time or in part from time to time, on and after July 1, 2002, upon not less
than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on July 1 of the year set forth below, plus,
in each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
2002......................................................... 107.625%
2003......................................................... 104.750%
2004......................................................... 102.875%
2005 and thereafter.......................................... 100.000%
7. Optional Redemption upon Equity Offerings.
At any time, or from time to time, on or prior to July 1, 2001,
the Issuers may, at their option, use the net cash proceeds of one or more
Public Equity Offerings (as defined below) to redeem the Notes at a redemption
price equal to 111.25% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided that at least 65%
of the principal amount of Notes originally issued remains outstanding
immediately after any such redemption. In order to effect the foregoing
redemption with the proceeds of any Public Equity Offering, the Issuers shall
make such redemption not more than 120 days after the consummation of any such
Public Equity Offering.
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As used in the preceding paragraph, "Public Equity Offering" means
an underwritten public offering of Qualified Capital Stock of Holdings or the
Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act, other than an offering pursuant to Form S-8
(or any successor thereto); provided that, in the event of a Public Equity
Offering by Holdings, Holdings contributes to the capital of the Company the
portion of the net cash proceeds of such Public Equity Offering necessary to pay
the aggregate redemption price (plus accrued interest to the redemption date) of
the Notes to be redeemed pursuant to the preceding paragraph.
8. Selection and Notice of Redemption.
In the event that less than all of the Notes are to be redeemed at
any time, selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed or, if such Notes are not then listed on
a national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, however, that no Notes of
a principal amount of $1,000 or less shall be redeemed in part; provided,
further, that if a partial redemption is made with the proceeds of a Public
Equity Offering, selection of the Notes or portions thereof for redemption shall
be made by the Trustee only on a pro rata basis or on as nearly a pro rata basis
as is practicable (subject to DTC procedures), unless such method is otherwise
prohibited. Notice 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. If any Note is to be redeemed in part
only, the notice of redemption that relates to such Note shall state the portion
of the principal amount thereof to be redeemed. A new Note in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Note. On and after the redemption
date, interest will cease to accrue on Notes or portions thereof called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to the Indenture.
9. Change of Control Offer.
Following the occurrence of a Change of Control, the Issuers
shall, within 30 days, make a Change of Control Offer for all Notes then
outstanding at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the Change
of Control Payment Date (subject to the right of Holders of record on the
relevant Interest Record Date to receive interest due on the relevant Interest
Payment Date).
10. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make
a Net Proceeds Offer for Notes at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Net Proceeds Offer Payment Date (subject to the right of Holders of record
on the Interest Relevant Record Date to receive interest due on the relevant
Interest Payment Date) with the excess proceeds of certain asset dispositions.
11. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as
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permitted by the Indenture. The Registrar need not register the transfer of or
exchange of any Notes or portions thereof selected for redemption, except the
unredeemed portion of any Note being redeemed in part.
12. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of
it for all purposes.
13. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Issuers at their written request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the
Indenture and the Notes, except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained in the
Indenture and the Notes, in each case upon satisfaction of certain conditions
specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes or comply
with any requirements of the SEC in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially
adversely affect the rights of any Holder of a Note.
16. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to
permit restrictions on dividends and other payments by Restricted Subsidiaries
to the Company, to consolidate, merge or sell all or substantially all of its
assets or to engage in transactions with affiliates or certain other related
persons. The limitations are subject to a number of important qualifications and
exceptions. The Issuers must report quarterly to the Trustee on compliance with
such limitations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable immediately in the
manner and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations
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therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of certain
continuing Defaults or Events of Default if it determines that withholding
notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Issuers or their respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
No director, officer, employee, stockholder or member of the
Issuers, as such, shall have any liability for any obligation of the Issuers
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Note by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
20. Authentication.
This Note shall not be valid until the Trustee or Authenticating
Agent signs the certificate of authentication on this Note.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuers have caused CUSIP
numbers to be printed on the Notes as a convenience to the Holders of the Notes.
No representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Registration Rights.
Pursuant to the Registration Rights Agreement, the Issuers will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for an 11 1/4% Senior Subordinated Note due 2006, Series B, of the Issuers
which has been registered under the Securities Act, in like principal amount and
having terms identical in all material respects to the Initial Notes. The
Holders shall be entitled to receive certain additional interest payments in the
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
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00. Governing Law.
The Indenture and the Notes will be governed by, and construed
in accordance with, the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the law of another jurisdiction would be required thereby.
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[FORM OF GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Note upon which this
notation is endorsed) hereby unconditionally guarantees on a senior subordinated
basis (such guaranty being referred to herein as the "Guarantee") the due and
punctual payment of the principal of, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal, premium and interest on the Notes, and the due and
punctual performance of all other obligations of the Issuers to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of the Guarantor to the Holders of Notes and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth,
and are expressly subordinated and subject in right of payment to the prior
payment in full of all Senior Debt of the Guarantor, to the extent and in the
manner provided in Article Eleven and Article Twelve of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which this Guarantee
is noted shall have been executed by the Trustee under the Indenture or the
Authenticating Agent by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This Guarantee is subject to release upon the terms set forth in
the Indenture.
[ ]
By:______________________________________
Name:
Title:
94
ASSIGNMENT FORM
I or we assign and transfer this Note to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Issuers. The agent may
substitute another to act for him.
Dated:___________________ Signed: ______________________________
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:______________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Xxxxxxxxx)
00
EXHIBIT B
[FORM OF SERIES B NOTE]
GENERAC PORTABLE PRODUCTS, LLC
GPPW, INC.
11 1/4% Senior Subordinated Note
due 2006, Series B
CUSIP No.:[ ]
No. [ ] $[ ]
GENERAC PORTABLE PRODUCTS, LLC, a limited liability company (the
"Company", which term includes any successor), and GPPW, INC., a Wisconsin
corporation ("GPPW", which term includes any successor and, together with the
Company, the "Issuers"), for value received jointly and severally promise to pay
to [ ] or registered assigns, the principal sum of [ ] Dollars, on July 1, 2006.
Interest Payment Dates: January 1 and July 1, commencing on
January 1, 1999.
Interest Record Dates: December 15 and June 15.
Reference is made to the further provisions of this Note contained
herein and the Indenture (as defined), which will for all purposes have the same
effect as if set forth at this place.
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IN WITNESS WHEREOF, each of the Issuers has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
GENERAC PORTABLE PRODUCTS, LLC
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
GPPW, INC.
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
Dated: [ ]
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FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Subordinated Notes due 2006,
Series B, described in the within-mentioned Indenture.
Dated: [ ]
MARINE MIDLAND BANK,
as Trustee
By:______________________________________
Authorized Signatory
or
MARINE MIDLAND BANK,
as Trustee
By Bankers Trust Company,
as Authenticating Agent
By:______________________________________
Authorized Signatory
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(REVERSE OF NOTE)
GENERAC PORTABLE PRODUCTS, LLC
GPPW, INC.
11 1/4% Senior Subordinated Note
due 2006, Series B
1. Interest.
The Issuers jointly and severally promise to pay interest on the
principal amount of this Note at the rate per annum shown above. Cash interest
on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from July 9, 1998. The Issuers will pay
interest semi-annually in arrears on each Interest Payment Date, commencing
January 1, 1999. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
In addition, the Issuers shall pay interest on overdue principal
and on overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful from time to time on demand, in each case at the
rate borne by this Note.
The Notes are not entitled to the benefit of any mandatory sinking
fund.
2. Method of Payment.
The Issuers shall pay interest on the Notes (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Notes are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Issuers shall pay principal and
interest in United States Legal Tender (as defined in the Indenture referred to
below). However, the Issuers may pay principal and interest by wire transfer of
Federal funds (provided that the Paying Agent shall have received wire
instructions on or prior to the relevant Interest Record Date), or interest by
check payable in such United States Legal Tender. The Issuers may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
Initially, Bankers Trust Company will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without notice
to the Holders. The Issuers may, subject to certain exceptions, act as
Registrar.
4. Indenture.
The Issuers issued the Notes under an Indenture, dated as of July
1, 1998 (the "Indenture"), by and among the Issuers and Marine Midland Bank, as
Trustee (the "Trustee"). Capitalized terms herein are used
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as defined in the Indenture unless otherwise defined herein. This Note is one of
a duly authorized issue of Notes of the Issuers designated as their 11 1/4%
Senior Subordinated Notes due 2006, Series B, under the Indenture. The aggregate
principal amount of Notes which may be issued under the Indenture is limited
(except as provided in the Indenture) to $160,000,000. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (the "TIA"), as in
effect on the date of the Indenture (except as otherwise indicated in the
Indenture) until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Notes are subject
to all such terms, and holders of Notes are referred to the Indenture and the
TIA for a statement of them.
5. Subordination.
The Notes are unsecured obligations of the Issuers and are
subordinated in right of payment to all Senior Debt of the Issuers to the extent
and in the manner provided in the Indenture. Each Holder of a Note, by accepting
a Note, agrees to such subordination, authorizes the Trustee to give effect to
such subordination and appoints the Trustee as attorney-in-fact for such
purpose. The Notes will rank pari passu in right of payment with any future
senior subordinated indebtedness of the Issuers and will rank senior in right of
payment to any other subordinated obligations of the Issuers.
6. Optional Redemption.
The Notes will be redeemable, at the Issuers' option, in whole at
any time or in part from time to time, on and after July 1, 2002, upon not less
than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on July 1 of the year set forth below, plus,
in each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
2002.................................................. 107.625%
2003.................................................. 104.750%
2004.................................................. 102.875%
2005 and thereafter................................... 100.000%
7. Optional Redemption upon Public Equity Offerings.
At any time, or from time to time, on or prior to July 1, 2001,
the Issuers may, at their option, use the net cash proceeds of one or more
Public Equity Offerings (as defined below) to redeem the Notes at a redemption
price equal to 111.25% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided that at least 65%
of the principal amount of Notes originally issued remains outstanding
immediately after any such redemption. In order to effect the foregoing
redemption with the proceeds of any Public Equity Offering, the Issuers shall
make such redemption not more than 120 days after the consummation of any such
Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering" means
an underwritten public offering of Qualified Capital Stock of Holdings or the
Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act, other than an offering pursuant to Form S-8
(or any successor thereto); provided that, in the event of a Public Equity
Offering by Holdings, Holdings contributes to the
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capital of the Company the portion of the net cash proceeds of such Public
Equity Offering necessary to pay the aggregate redemption price (plus accrued
interest to the redemption date) of the Notes to be redeemed pursuant to the
preceding paragraph.
8. Selection and Notice of Redemption.
In the event that less than all of the Notes are to be redeemed at
any time, selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed or, if such Notes are not then listed on
a national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, however, that no Notes of
a principal amount of $1,000 or less shall be redeemed in part; provided,
further, that if a partial redemption is made with the proceeds of a Public
Equity Offering, selection of the Notes or portions thereof for redemption shall
be made by the Trustee only on a pro rata basis or on as nearly a pro rata basis
as is practicable (subject to DTC procedures), unless such method is otherwise
prohibited. Notice 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. If any Note is to be redeemed in part
only, the notice of redemption that relates to such Note shall state the portion
of the principal amount thereof to be redeemed. A new Note in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Note. On and after the redemption
date, interest will cease to accrue on Notes or portions thereof called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to the Indenture.
9. Change of Control Offer.
Following the occurrence of a Change of Control, the Issuers
shall, within 30 days, make a Change of Control Offer for all Notes then
outstanding at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the Change
of Control Payment Date (subject to the right of Holders of record on the
relevant Interest Record Date to receive interest due on the relevant Interest
Payment Date).
10. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to make
a Net Proceeds Offer for Notes at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Net Proceeds Offer Payment Date (subject to the right of Holders of record
on the Interest Relevant Record Date to receive interest due on the relevant
Interest Payment Date) with the excess proceeds of certain Asset Sales.
11. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange of any
Notes or portions thereof selected for redemption, except the unredeemed portion
of any Note being redeemed in part.
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12. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of
it for all purposes.
13. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Issuers at their written request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the
Indenture and the Notes, except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained in the
Indenture and the Notes, in each case upon satisfaction of certain conditions
specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes or comply
with any requirements of the SEC in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially
adversely affect the rights of any Holder of a Note.
16. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to
permit restrictions on dividends and other payments by Restricted Subsidiaries
to the Company, to consolidate, merge or sell all or substantially all of its
assets or to engage in transactions with affiliates or certain other related
persons. The limitations are subject to a number of important qualifications and
exceptions. The Issuers must report quarterly to the Trustee on compliance with
such limitations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable immediately in the
manner and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of
certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
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18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Issuers or their respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
No director, officer, employee, stockholder or member of the
Issuers, as such, shall have any liability for any obligation of the Issuers
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Note by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
20. Authentication.
This Note shall not be valid until the Trustee or Authenticating
Agent signs the certificate of authentication on this Note.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuers have caused CUSIP
numbers to be printed on the Notes as a convenience to the Holders of the Notes.
No representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Governing Law.
The Indenture and the Notes will be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect of
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
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[FORM OF GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Note upon which this
notation is endorsed) hereby unconditionally guarantees on a senior subordinated
basis (such guaranty being referred to herein as the "Guarantee") the due and
punctual payment of the principal of, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal, premium and interest on the Notes, and the due and
punctual performance of all other obligations of the Issuers to the Holders or
the Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of the Guarantor to the Holders of Notes and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth,
and are expressly subordinated and subject in right of payment to the prior
payment in full of all Senior Debt of the Guarantor, to the extent and in the
manner provided in Article Eleven and Article Twelve of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which this Guarantee
is noted shall have been executed by the Trustee under the Indenture or the
Authenticating Agent by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This Guarantee is subject to release upon the terms set forth in
the Indenture.
[ ]
By:______________________________________
Name:
Title:
104
ASSIGNMENT FORM
I or we assign and transfer this Note to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Issuers. The agent may
substitute another to act for him.
Dated:___________________ Signed: ________________________________
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
__________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Registrar)
105
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 4.05 or Section 4.14 of the Indenture, check the appropriate
box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Note purchased by
the Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state the
amount: $_____________
Dated:___________________ Your Signature:_____________________
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
_________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
106
EXHIBIT C
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS
NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.16 OF THE INDENTURE.
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EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 11-1/4% Senior Subordinated Notes due 2006
(the "Notes")
Generac Portable Products, LLC and GPPW, Inc.
This Certificate relates to $_______ principal amount of Notes
held in the form of* ___ a beneficial interest in a Global Note or* _______
Physical Notes by ______ (the "Transferor").
The Transferor:*
/ / has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Note held by the Depositary a
Physical Note or Physical Notes in definitive, registered form of authorized
denominations and an aggregate number equal to its beneficial interest in such
Global Note (or the portion thereof indicated above); or
/ / has requested by written order that the Registrar exchange or
register the transfer of a Physical Note or Physical Notes.
In connection with such request and in respect of each such Note,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Notes and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Notes does not require Registration under the Securities Act of
1933, as amended (the "Act"), because*:
/ / Such Note is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
/ / Such Note is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
/ / Such Note is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act) which delivers a certificate to the Trustee in the form of
Exhibit E to the Indenture.
/ / Such Note is being transferred in reliance on Rule 144 under
the Act.
/ / Such Note is being transferred in reliance on and in
compliance with an exemption from the Registration requirements of the Act other
than Rule 144A or Rule 144 under the Act to a person other than an institutional
"accredited investor." [An Opinion of Counsel to the effect that such transfer
does not require Registration under the Securities Act accompanies this
certification.]
________________________________
[INSERT NAME OF TRANSFEROR]
By: ____________________________
[Authorized Signatory]
Date:________________________
*Check applicable box.
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EXHIBIT E
Form of Transferee Letter of Representation
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust and Agency Services
Dear Sirs:
This certificate is delivered to request a transfer of $________
principal amount of the 11 1/4% Senior Subordinated Notes due 2006 of Generac
Portable Products, LLC and GPPW, Inc. (the "Issuers") and any guarantee thereof
(the "Notes"). Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:______________________________
Address:___________________________
Taxpayer ID Number:________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risk of our investment in the Notes and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two years after the
later of the date of original issue and the last date on which the Issuers or
any affiliate of the Issuers was the owner of such Notes (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to an Issuer, (b)
pursuant to a registration statement which has been declared effective under the
Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is
being made in reliance on Rule 144A, (d) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, that is purchasing for its own account or for the account of
such an institutional "accredited investor," in each case in a minimum principal
amount of Notes of $250,000 or (e) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws. If
any resale or other transfer of the Notes is proposed to be made pursuant to
clause (d) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Issuers and the Registrar, which shall provide, among
other things,
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that the transferee is an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is
acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act. The Issuers and the Registrar reserve the right
prior to any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Notes pursuant to clause (d) or (e) above to require the
delivery of an opinion of counsel, certificates and/or other information
satisfactory to the Issuers and the Registrar.
Dated: ______________________ TRANSFEREE:
By: ________________________________
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