1
EXHIBIT 4.1
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MMI PRODUCTS, INC.,
ISSUER,
AND
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U.S. TRUST COMPANY OF TEXAS, N.A.,
TRUSTEE
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INDENTURE
Dated as of April 16, 1997
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Up to $200,000,000
11 1/4% Senior Subordinated Notes due 2007
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2
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Incorporation by Reference of TIA . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.3 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE II
THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.1 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.2 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.3 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.4 Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.5 Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.6 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.7 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.8 Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.9 Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.10 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 2.13 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE III
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.1 Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.2 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.3 Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 3.5 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 3.6 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 3.7 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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SECTION 3.8 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 3.9 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE IV
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.1 Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.3 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.4 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.5 Maintenance of Properties and Insurance . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.6 Compliance Certificate; Notice of Default . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.7 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.8 Limitation on Status as Investment Company . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.9 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.10 Rule 144A Information Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.11 Limitation on the Incurrence of Indebtedness and Issuance of Disqualified Stock . . . 48
SECTION 4.12 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.13 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 4.14 Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries . . . . 54
SECTION 4.15 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.16 Limitation on Guarantees by Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.17 Limitation on Layering Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 4.18 Limitation on Issuance and Sale of Stock of Restricted by Subsidiaries . . . . . . . 58
SECTION 4.19 Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.20 Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 4.21 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE V
SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.1 Limitation on Merger, Consolidation or Sale of Assets . . . . . . . . . . . . . . . 65
SECTION 5.2 Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . 66
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ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.2 Acceleration of Maturity Date; Rescission and Annulment . . . . . . . . . . . . . . 69
SECTION 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . 71
SECTION 6.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 6.5 Trustee May Enforce Claims Without Possession of Notes . . . . . . . . . . . . . . . 72
SECTION 6.6 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 6.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 6.8 Unconditional Right of Holders to Receive Principal, Premium, Interest and
Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 6.9 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 6.10 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 6.11 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 6.12 Waiver of Past Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.13 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.14 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.2 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 7.3 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 7.4 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 7.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 7.6 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 7.7 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 7.8 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 7.9 Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 7.11 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . 85
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . 85
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . 85
SECTION 8.2 Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 8.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
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SECTION 8.4 Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 86
SECTION 8.5 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 8.6 Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 8.7 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 8.8 Discharge of Liability on Securities; Defeasance . . . . . . . . . . . . . . . . . . 90
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . 91
SECTION 9.1 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 9.2 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 9.3 Compliance with TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.4 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.5 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 9.6 Trustee to Sign Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE X
[RESERVED]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE XI
[RESERVED]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
ARTICLE XII
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 12.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 12.2 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 12.3 Default on Designated Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 12.4 Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 12.5 When Distribution Must be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 12.6 Notice by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 12.7 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 12.8 Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
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SECTION 12.9 Subordination May Not be Impaired by Company . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.10 Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.12 Authorization to Effect Subordination . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 12.13 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
ARTICLE XIII
[RESERVED]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
ARTICLE XIV
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 14.1 TIA Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 14.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 14.3 Communications by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . 103
SECTION 14.4 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . 103
SECTION 14.5 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . 103
SECTION 14.6 Rules by Trustee, Paying Agent, Registrar . . . . . . . . . . . . . . . . . . . . . 104
SECTION 14.7 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 14.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 14.9 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . 105
SECTION 14.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 14.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 14.12 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 14.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 14.14 Table of Contents, Headings, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 14.15 Qualification of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 14.16 Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
EXHIBIT A - FORM OF NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B - FORM OF LETTER TO BE DELIVERED BY ACCREDITED
INSTITUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C - GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D - FORM OF PROVISIONS TO SUPPLEMENTAL INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
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310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8, 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
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TIA INDENTURE
SECTION SECTION
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315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
-------------
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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INDENTURE, dated as of April 16, 1997, between MMI Products, Inc., a
Delaware corporation (the "Company"), and U.S. Trust Company of Texas, N.A., a
national association formed under the laws of the United States, as Trustee.
The Company and the Trustee agree as follows for the equal and
rateable benefit of the Holders of the 11 1/4% Series A Senior Subordinated
Notes due 2007 (the "Series A Notes") and the 11 1/4% Series B Senior
Subordinated Notes (the "Series B Notes" and, together with the Series A Notes,
the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"144A Global Note" means a Note initially bearing CUSIP number
000000XX0 through which QIBs hold a beneficial interest in the Global Note, or
any replacement Note issued therefor.
"Acceleration Notice" shall have the meaning specified in Section 6.2.
"Accredited Investor Global Note" means a Note initially bearing CUSIP
number 000000XX0 through which Institutional Accredited Investors hold a
beneficial interest in the Global Note, or any replacement Note issued
therefor.
"Acquired Debt" means, with respect to any specified Person: (i)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities (or the
equivalents) of a Person shall be deemed to be control.
"Affiliate Transaction" shall have the meaning specified in Section
4.15.
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"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Member" means a member of, or a participant in, the Depositary.
"Asset Sale" means any sale, transfer or other disposition (including,
without limitation, by merger, consolidation or sale-and-leaseback transaction)
of (i) shares of Capital Stock of a Subsidiary of the Company (other than
directors' qualifying shares) or (ii) property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that an Asset Sale shall not include (a) any sale,
transfer or other disposition of shares of Capital Stock, property or assets by
a Restricted Subsidiary of the Company to the Company or to any Restricted
Subsidiary that is a Wholly Owned Subsidiary of the Company, (b) any sale,
transfer or other disposition of defaulted receivables for collection or any
sale, transfer or other disposition of property of assets in the ordinary
course of business, (c) any isolated sale, transfer or other disposition that
does not involve aggregate consideration in excess of $500,000 individually,
(d) the grant in the ordinary course of business of any non- exclusive license
of patents, trademarks, registrations therefor and other similar intellectual
property, (e) any Lien (or foreclosure thereon) securing Indebtedness to the
extent that such Lien is granted in compliance with Section 4.13, (f) any
Restricted Payment permitted by Section 4.12, (g) any disposition of assets or
property in the ordinary course of business to the extent such assets are
obsolete, worn-out or no longer useful in the Company's or any Restricted
Subsidiaries' business, (h) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company as permitted by Article
V; provided, that the assets not so sold, leased, conveyed, disposed of or
otherwise transferred shall be deemed an Asset Sale or (i) any disposition that
constitutes a Change of Control.
"Asset Sale Offer" shall have the meaning specified in Section 4.20.
"Bankruptcy Law" means title 11, U.S. Code, or any similar federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Borrowing Base Amount" means, as to the Company, the sum of (x) 50%
of Finished Goods Inventory plus (y) 65% of Raw Materials Inventory plus (z)
85% of Receivables, determined on a consolidated basis in accordance with GAAP.
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11
"Xxxxx Put Agreement" means that certain Amended and Restated Put
Agreement dated as of December 13, 1996, by and between Xxxxxx X. Xxxxx and
Holding, as in effect on the date of this Indenture.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be so required to be capitalized on the balance
sheet in accordance with GAAP.
"Capital Stock" means (i) any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (ii) in the case of a partnership, partnership interests (whether
general or limited) and (iii) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash" 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.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (iii) certificates of
deposit and Eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500,000,000, (iv) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (ii) and (iii) entered into with any
financial institution meeting the qualifications specified in clause (iii)
above, (v) commercial paper having the highest rating obtainable from Xxxxx'x
Investors Service, Inc. or Standard & Poor's Corporation and in each case
maturing within six months after the date of acquisition and (vi) shares of any
money market mutual fund, or similar fund, in each case having assets in excess
of $500,000,000, which invests solely in investments of the types described in
clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the following
(whether or not otherwise permitted by this Indenture): (i) the sale, lease,
transfer, conveyance or other disposition, in one transaction or a series of
related transactions, directly or indirectly, of all or substantially all of
the assets of the Company and its Restricted Subsidiaries to any Person or
group (as such term is used in Sections 13(d) and 14(d) of the Exchange Act or
any successor provisions thereto) (a "Group"); (ii) the adoption of a plan
relating to the liquidation or dissolution of the Company; (iii) any Person or
Group, other than Permitted Holders, is or
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becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act or any successor provisions thereto, except that a Person shall be
deemed to have "beneficial ownership" of all shares that any such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Company (or the Company's
successor in the event of a merger or consolidation); or (iv) the first day on
which a majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"Change of Control Offer" shall have the meaning specified in Section
4.21.
"Change of Control Payment Date" shall have the meaning specified in
Section 4.21.
"Change of Control Put Date" shall have the meaning specified in
Section 4.21.
"Change of Control Repurchase Price" shall have the meaning specified
in Section 4.21.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreement" means any commodity futures contract, commodity
option or other similar agreement or arrangement entered into by the Company or
any of its Restricted Subsidiaries designed to protect the Company or any of
its Restricted Subsidiaries against fluctuations in the price of commodities
actually used in the ordinary course of business of the Company and its
Restricted Subsidiaries.
"Common Stock" means, with respect to any Person, Capital Stock of
such Person that does not rank prior, as to the payment of dividends or as to
the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period, plus (i) an
amount equal to any extraordinary, non-recurring or unusual loss plus any net
loss realized in connection with an Asset Sale, to the extent such losses were
deducted or otherwise excluded in computing Consolidated Net Income, plus (ii)
provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent such provision for taxes
was deducted or otherwise excluded in computing Consolidated Net Income, plus
(iii) Consolidated Interest Expense of such Person less consolidated interest
income for such period, to the extent such amount was deducted or otherwise
excluded in computing Consolidated Net Income, plus (iv) depreciation and
amortization (including amortization of goodwill, amortization of deferred debt
expense and other intangibles and amortization of deferred compensation in
respect of non-cash compensation but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash charges of such
Person and its Restricted Subsidiaries for such
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13
period, to the extent such depreciation and amortization were deducted or
otherwise excluded in computing Consolidated Net Income, plus (v) an amount
equal to all premiums on prepayments of debt, in each case, for such period
without duplication on a consolidated basis and determined in accordance with
GAAP.
Notwithstanding the foregoing, the provision for taxes, and the
depreciation and amortization and other non- cash charges of, a Restricted
Subsidiary shall be added to Consolidated Net Income to compute Consolidated
Cash Flow only to the extent (and in the same proportion) the Net Income of
such Restricted Subsidiary was included in calculating the Consolidated Net
Income of such Person and only if a corresponding amount would be permitted at
the date of determination to be distributed by dividend to such Person by such
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the aggregate consolidated interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid or accrued, of such Person
and its Restricted Subsidiaries for such period (including (i) amortization of
original issue discount and deferred financing costs and non-cash interest
payments and accruals, (ii) the interest portion of all deferred payment
obligations, calculated in accordance with the effective interest method, and
(iii) the interest component of any payments associated with Capital Lease
Obligations and net payments (if any) pursuant to Hedging Obligations, in each
case, to the extent attributable to such period, but excluding (x) commissions,
discounts and other fees and charges incurred with respect to letters of credit
and bankers' acceptances financing and (y) any interest expense on Indebtedness
of another Person that is Guaranteed by such Person or secured by a Lien on
assets of such Person) determined in accordance with GAAP. Consolidated
Interest Expense of the Company shall not include any prepayment premiums or
amortization of original issue discount or deferred financing costs, to the
extent such amounts are incurred as a result of the prepayment on the date of
this Indenture of any Indebtedness of the Company with the proceeds of the
Notes.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP, adjusted to exclude (only to the extent included and without
duplication): (i) all gains which are extraordinary, unusual or are
non-recurring (including any gain from the sale or other disposition of assets
outside the ordinary course of business or from the issuance or sale of capital
stock); (ii) all gains resulting from currency or hedging transactions; (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition; (iv) depreciation,
amortization or other expenses recorded as a result of the application of
purchase accounting in accordance with Accounting Principles Board Opinions
Nos. 16 and 17; and (v) the cumulative effect of a change in accounting
principles; provided that (a) the Net Income of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
included
5
14
only to the extent of the amount of cash dividends or cash distributions
actually paid to the referent Person or a Wholly Owned Subsidiary thereof that
is a Restricted Subsidiary and (b) the Net Income of any Person that is an
Unrestricted Subsidiary shall be included only to the extent of the amount of
cash dividends or cash distributions paid to the referent Person or a
Restricted Subsidiary thereof.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to this Indenture, and
thereafter means such successor.
"Continuing Director" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this Indenture, (ii) was nominated for
election or elected to such Board of Directors with the affirmative vote of a
majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election, or (iii) is a designee of
CVC or its Related Persons or Affiliates.
"Covenant Defeasance" shall have the meaning specified in Section 8.3.
"Credit Facility" means the Amended and Restated Loan and Security
Agreement, dated as of December 13, 1996, by and among the Company, Fleet
Capital Corporation, as a lender and collateral agent, and Transamerica
Business Credit Corporation, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced
or refinanced from time to time.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
the Company or any of its Restricted Subsidiaries in the ordinary course of
business against fluctuation in the values of the currencies of the countries
(other than the United States) in which the Company or its Restricted
Subsidiaries conduct business.
"CVC" means Citicorp Venture Capital, Ltd.
"Default" means any event or condition that is, or with the passage of
time or the giving of notice, or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section 2.12.
"Definitive Notes" means Notes that are in the form of Note attached
hereto as Exhibit A that do not include the information called for by footnotes
1 and 3 thereof.
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15
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means (i) the Obligations of the
Company with respect to the Credit Facility and (ii) any other Senior
Indebtedness of the Company permitted under this Indenture the principal amount
of which at original issuance is $5,000,000 or more (other than Senior
Indebtedness that is comprised of Hedging Obligations owing to a Person that is
not a party to the Credit Facility).
"Disqualified Stock" means 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 or is convertible or exchangeable for Indebtedness at the option of
the holder thereof, in whole or in part, on or prior to April 15, 2007;
provided that any Capital Stock that would not constitute Disqualified Stock
but for provisions thereof giving holders thereof the right to require such
Person to repurchase or redeem such Capital Stock upon the occurrence of an
"asset sale" or "change of control" occurring prior to the Stated Maturity of
the Notes shall not constitute Disqualified Stock if (i) the "asset sale" or
"change of control" provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions in favor of
Holders of Notes set forth under Section 4.20 and Section 4.21, as the case may
be, (ii) such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Notes as are required to be repurchased pursuant
to Section 4.20 and Section 4.21 and (iii) such Capital Stock is redeemable
within 90 days of the "asset sale" or "change of control" events applicable to
such Capital Stock.
"DTC" shall have the meaning specified in Section 2.3.
"Effective Registration" means that the Company shall have (i)
commenced a Registered Exchange Offer for the Series A Notes pursuant to an
effective registration statement under the Securities Act or (ii) filed and
caused to become effective a Shelf Registration under the Securities Act for
the sale of Notes by the Holders.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" shall have the meaning specified in Section 6.1.
"Excess Proceeds" shall have the meaning specified in Section 4.20.
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16
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than the Credit Facility) in existence on the date of this
Indenture, until such amounts are repaid.
"Fair Market Value" means, with respect to any asset, the price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction; provided that the Fair Market Value of
any such asset or assets shall be determined by the Board of Directors of the
Company, acting in good faith and by unanimous resolution, and which
determination shall be evidenced by an Officers' Certificate delivered to the
Trustee.
"Finished Goods Inventory" means, with respect to the Company, the
consolidated finished goods inventory of the Company, net of reserves,
determined in accordance with GAAP.
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees
or redeems any Indebtedness (other than revolving credit borrowings) or if the
Company issues or redeems any preferred stock, in each case subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date of the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Transaction Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable reference period. For purposes of making the
computation referred to above, acquisitions (including all mergers and
consolidations), dispositions and discontinuances of operations that have been
made by the Company or any of its Restricted Subsidiaries during the reference
period or subsequent to such reference period and on or prior to the
Transaction Date shall be calculated on a pro forma basis assuming that all
such acquisitions, dispositions and discontinuances of operations had occurred
on the first day of the reference period; provided, however, that Fixed Charges
shall be reduced by amounts attributable to operations that are so disposed of
or discontinued only to the extent that the obligations giving rise to such
Fixed Charges would no longer be obligations contributing to the Company's
Fixed Charges subsequent to the Transaction Date. Calculations of pro forma
amounts in accordance with this definition shall be done in accordance with
Article II of Regulation S-X under the Securities Act or any successor
provision.
"Fixed Charges" means, with respect to any Person for any period, the
sum, without duplication, of (i) Consolidated Interest Expense, (ii)
commissions, discounts and other fees and
8
17
charges incurred with respect to letters of credit and bankers' acceptances
financing, (iii) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or secured by a Lien on assets of such Person and
(iv) the product of (a) all cash or non-cash dividend payments on any series of
preferred stock of any Restricted Subsidiary of such Person (other than
preferred stock of such Person) times (b) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, determined, in each case, on a consolidated basis and in accordance
with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect in the United States on the date of this
Indenture.
"Global Notes" means, individually and collectively, the 144A Global
Note and the Accredited Investor Global Note, which is a permanent global note
that contains the paragraph referred to in footnote 1 and the additional
schedule referred to in footnote 3 to the form of the Note attached hereto as
Exhibit A, and that is deposited with and registered in the name of the
Depositary.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) Interest Rate Agreements, (ii) Currency
Agreements and (iii) Commodity Agreements.
"Holder" or "Noteholder" means the person in whose name a Note is
registered on the Registrar's books.
"Holding" shall mean Merchants Metals Holding Company.
"Indebtedness" means, with respect to any Person, without duplication,
any indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
bankers' acceptances or representing Capital Lease Obligations or the balance
deferred and unpaid of the purchase price of any property or representing any
Hedging Obligations, except any such balance that constitutes an accrued
expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, as well as all indebtedness of others secured by a Lien
on any asset
9
18
of such Person (whether or not such indebtedness is assumed by such Person)
and, to the extent not otherwise included, the Guarantee of any Indebtedness of
such Person or any other Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Initial Purchaser" means Bear, Xxxxxxx & Co. Inc.
"Institutional Accredited Investor" shall mean 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.
"Intercompany Indebtedness" shall have the meaning specified in
Section 4.11.
"Interest Payment Date" means the stated due date of an installment of
interest on the Notes.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement entered into by the Company or any of its Restricted
Subsidiaries designed to protect the Company or any of its Restricted
Subsidiaries in the ordinary course of business against fluctuations in
interest rates.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees), advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Issue Date" means the date of first issuance of the Notes under this
Indenture.
"Legal Defeasance" shall have the meaning specified in Section 8.2.
"Legal Holiday" shall have the meaning specified in Section 14.7.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.)
"Liquidated Damages" means all liquidated damages then owing pursuant
to the Registration Rights Agreement.
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19
"Management Holders" means any current or past full-time members of
senior management of the Company who acquire stock of the Company through
management stock purchase or option plans.
"Management Plans" means the Merchant Metals Holding Company 1988
Stock Option Plan, as such plan may be amended from time to time or such other
similar compensation plans which may be adopted by the Company or Holding.
"Mannesmann Senior Subordinated Debt" means the Company's debt
outstanding to Mannesmann Pipe & Steel Corporation ("Mannesmann") as of the
date of this Indenture, pursuant to that certain Amended and Restated Senior
Secured Promissory Note dated December 13, 1996, executed by the Company in
favor of Mannesmann in the principal amount of $10,000,000.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any sale of assets (including, without
limitation, dispositions pursuant to sale/leaseback transactions) or (b) the
disposition of any securities or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries, and (ii) any extraordinary gain
(but not loss), together with any related provision for taxes on such
extraordinary gain (but not loss).
"Net Proceeds" means the aggregate amount of consideration received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
in the form of cash or Cash Equivalents (including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of the direct costs relating to such Asset
Sale (including, without limitation, legal, accounting and investment banking
fees, and sales commissions) and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets (including Equity Interests) the subject of such
Asset Sale and any reserve for adjustment in respect of the sale price of such
asset or assets.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as guarantor or
otherwise), or (c) constitutes the lender; (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its
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stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Note Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Notice of Default" shall have the meaning specified in Section
6.1(d).
"Obligations" means any principal, premium, interest (including
post-petition interest), penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
"Offering Memorandum" means that certain Offering Memorandum for the
Company's 11 1/4% Senior Subordinated Notes in the aggregate principal amount
of $120,000,000, dated April 11, 1997.
"Officer" means, with respect to the Company, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller or the Secretary of the Company.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by (i) the Chief Executive Officer or President and (ii) the
Chief Financial Officer or chief accounting officer of such Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee and which complies with the requirements
of Sections 14.4 and 14.5.
"Original Issue Date" of any Note (or portion thereof) means the
earlier of (a) the date of such Note or (b) the date of any Note (or portion
thereof) for which such Note was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Payment Blockage Period" shall have the meaning specified in Section
12.3.
"Payment Default" shall have the meaning specified in Section 6.1.
"Permitted Asset Swap" means any one or more transactions in which the
Company or any of its Restricted Subsidiaries exchanges assets for
consideration consisting of cash and/or assets used or useful in the business
of the Company and conducted on the date of this Indenture or reasonable
extensions, developments or expansions thereof or ancillary thereto or other
assets in an amount less than 15% of the fair market value of such transaction
or transactions.
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"Permitted Holders" means CVC and its Related Persons and the
Management Holders and their Related Persons and Affiliates.
"Permitted Investments" means (i) any Investment in the Company or in
a Wholly Owned Subsidiary of the Company that is a Restricted Subsidiary; (ii)
any Investment in Cash Equivalents; (iii) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (a) such Person becomes a Wholly Owned Subsidiary of the Company
that is a Restricted Subsidiary or (b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Subsidiary of
the Company that is a Restricted Subsidiary; (iv) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was
made in compliance with Section 4.20.
"Permitted Liens" means (i) Liens in favor of the Company; (ii) Liens
securing Senior Indebtedness of the Company that was permitted to be incurred
pursuant to this Indenture; (iii) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that such Liens were not created
in contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company or such Restricted Subsidiary; (iv) Liens on property existing at the
time of acquisition thereof by the Company or any Restricted Subsidiary of the
Company; provided that such Liens were not created in contemplation of such
acquisition; (v) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (vi) Liens existing on the date of
this Indenture; (vii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor; (viii) Liens imposed by
law, such as mechanics', carriers', warehousemen's, materialmen's and vendors'
Liens, incurred in good faith in the ordinary course of business with respect
to amounts not yet delinquent or being contested in good faith by appropriate
proceedings if a reserve or other appropriate provisions, if any, shall be
required by GAAP shall have been made therefor; (ix) zoning restrictions,
easements, licenses, covenants, reservations, restrictions on the use of real
property or minor irregularities of title incident thereto that do not, in the
aggregate, materially detract from the value of the property or the assets of
the Company or impair the use of such property in the operation of the
Company's business; (x) judgment Liens to the extent that such judgments do not
cause or constitute a Default or an Event of Default; (xi) Liens to secure the
payment of all or a part of the purchase price of property or assets acquired
or constructed in the ordinary course of business on or after the date of this
Indenture, provided that (a) such property or assets are used in the same or a
similar line of business as the Company was engaged in on the date of this
Indenture, (b) at the time of incurrence of any such Lien, the aggregate
principal amount of the obligations secured by such Lien shall not exceed the
cost of the assets or property (or portions thereof) so acquired or
constructed, (c) each such Lien shall encumber only the assets
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or property (or portions thereof) so acquired or constructed and shall attach
to such property within 120 days of the purchase or construction thereof and
(d) any Indebtedness secured by such Lien shall have been permitted to be
incurred under Section 4.11; and (xii) precautionary filings of any financial
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction made in connection with Capital Lease Obligations permitted to be
incurred under Section 4.11, provided that such Lien does not violate clauses
(a), (b) and (c) of clause (xi) hereof; and (xiii) liens incurred in the
ordinary course of business securing assets having a fair market value not in
excess of $500,000 in the aggregate.
"Permitted Refinancing" shall have the meaning specified in Section
4.11.
"Person" or "person" means an individual, limited or general
partnership, corporation, limited liability company, association,
unincorporated organization, trust, joint stock company or joint venture, or a
government or any agency or political subdivision thereof.
"principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, any applicable premium, if any, on such
Indebtedness.
"property" means any right or interest in or to property or assets of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Public Equity Offering" means a bona fide underwritten sale to the
public of Common Stock of the Company pursuant to a registration statement
(other than on Form S-8 or any other form relating to securities issuable under
any benefit plan of the Company) that is declared effective by the SEC.
"Purchase Agreement" means that certain Purchase Agreement, dated as
of April 11, 1997, by and between the Company and the Initial Purchaser, as
such agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Purchase Money Obligations" of any Person means any obligations of
such Person or any of its Restricted Subsidiaries to any seller or any other
Person incurred or assumed in connection with the purchase of real or personal
property to be used in the business of such Person or any of its subsidiaries
within 180 days of such incurrence or assumption.
"Qualified Stock" means any Capital Stock of the Company that is not
Disqualified Stock.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
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"Raw Materials Inventory" means, with respect to the Company, the
consolidated raw materials and work-in- process inventory of the Company, net
of reserves, determined in accordance with GAAP.
"Recapitalization" means that certain recapitalization transaction
relating to Holding and the Company consummated on December 13, 1996.
"Receivables" means the consolidated trade receivables of the Company,
net of allowance for doubtful accounts, as determined in accordance with GAAP.
"Record Date" means a Record Date specified in the Notes whether or
not such Record Date is a Business Day.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption pursuant to Article III of this
Indenture and Paragraph 5 in the form of Note.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the redemption price for such redemption pursuant to Paragraph 5 in
the form of Note, which shall include, without duplication, in each case,
accrued and unpaid interest and Liquidated Damages, if any, to and including
the Redemption Date.
"Refinancing Indebtedness" shall have the meaning specified in Section
4.11.
"Registered Exchange Offer" shall have the meaning given such term in
the Registration Rights Agreement.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of the date of this Indenture, between the Company and the
Initial Purchaser, as such agreement may be amended, modified or supplemented
from time to time in accordance with the terms thereof.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the
equity interests in such Person) or (b) 5% or more of the combined voting power
of the Voting Stock of such Person.
"Repurchase Date" shall have the meaning specified in Section 4.20.
"Repurchase Offer Period" shall have the meaning specified in Section
4.20.
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"Repurchase Price" shall have the meaning specified in Section 4.20.
"Restricted Investment" means an Investment other than a Permitted
Investment. With respect to Unrestricted Subsidiaries or Restricted
Subsidiaries, the amount of Restricted Investments shall be calculated as the
greater of (i) the book value of assets contributed by the Company or a
Restricted Subsidiary or (ii) the Fair Market Value of the assets contributed
by the Company or a Restricted Subsidiary (as certified by a resolution of
independent directors of the Company if Fair Market Value or book value is
greater than $1,000,000).
"Restricted Payment" shall have the meaning specified in Section 4.12.
"Restricted Note" means a Note, unless or until it has been (i)
disposed of in a transaction effectively registered under the Securities Act or
(ii) distributed to the public pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act.
"Restricted Subsidiary" means (i) any Subsidiary of the Company (other
than a Subsidiary that is also a Subsidiary of an Unrestricted Subsidiary)
organized or acquired after the date of this Indenture, unless such Subsidiary
shall have been designated as an Unrestricted Subsidiary by resolution of the
Board of Directors as provided in and in compliance with the definition of
"Unrestricted Subsidiary" and (ii) any Unrestricted Subsidiary which is
designated as a Restricted Subsidiary by the Board of Directors of the Company;
provided that immediately after giving effect to the designation referred to in
clause (ii), no Default or Event of Default shall have occurred and be
continuing and the Company could incur at least $1.00 of additional
Indebtedness under Section 4.11. The Company shall evidence any such
designation to the Trustee by promptly filing with the Trustee an Officers'
Certificate certifying that such designation has been made and stating that
such designation complies with the requirements of the immediately preceding
sentence.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Indebtedness" means, with respect to the Company, (i) the
Obligations of the Company with respect to the Credit Facility and (ii) any
other Indebtedness permitted to be incurred by the Company under the terms of
this Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is pari passu with or subordinated in right of
payment to the Notes. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness shall not include (aa) any obligation of the
Company to, in respect of or imposed by any environmental, landfill, waste
management or other regulatory governmental agency, statute, law or court
order, (bb) any liability for federal, state, local or other taxes owed or
owing by the Company, (cc) any Indebtedness of the Company to any of the
Company's Subsidiaries or other Affiliates, (dd) any trade payables or (ee) any
Indebtedness that is incurred in violation of this Indenture on or after the
date of this Indenture.
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"Shelf Registration Statement" shall have the meaning specified in the
Registration Rights Agreement.
"Special Record Date" for payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity," when used with respect to any Note, means April 15,
2007.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination
thereof and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Persons or one or more Subsidiaries
of such Person or any combination thereof.
"TIA" means the Trust Indenture Act of 1939, as amended and in effect
on the date of the execution of this Indenture unless otherwise specified
herein.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the Nasdaq
National Market (or, if the Common Stock is not admitted to trading thereon, on
the principal national securities exchange on which the Common Stock is at that
time listed or admitted to trading).
"Transfer Restricted Notes" means Notes that bear or are required to
bear the legend set forth in Section 2.6 hereof.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust division
(or any successor group) of the Trustee or any other 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 of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
"Unrestricted Subsidiary" means, until such time as any of the
following shall be designated as a Restricted Subsidiary of the Company by the
Board of Directors of the Company as provided in and in compliance with the
definition of "Restricted Subsidiary," (i) any Subsidiary of the Company or of
a Restricted Subsidiary of the Company organized or acquired
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after the date of this Indenture that is designated concurrently with its
organization or acquisition as an Unrestricted Subsidiary by resolution of the
Board of Directors of the Company, (ii) any Subsidiary of any Unrestricted
Subsidiary and (iii) any Restricted Subsidiary of the Company that is
designated as an Unrestricted Subsidiary by resolution of the Board of
Directors of the Company, provided that (a) immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and be
continuing, (b) any such designation shall be deemed, at the election of the
Company at the time of such designation, to be either (but not both) (x) the
making of a Restricted Payment at the time of such designation in an amount
equal to the Investment in such Subsidiary subject to the restrictions
contained in Section 4.12 or (y) the making of an Asset Sale at the time of
such designation in an amount equal to the Investment in such Subsidiary
subject to the restrictions contained in Section 4.20, and (c) such Subsidiary
or any of its Subsidiaries does not own any Capital Stock or Indebtedness of,
or own or hold 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.
A Person may be designated as an Unrestricted Subsidiary only if and for so
long as such Person (i) has no Indebtedness other than Non- Recourse Debt; (ii)
is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to make any payment to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results; and (iii) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries. The Company shall
evidence any designation pursuant to clause (i) or (iii) of the first sentence
hereof to the Trustee by filing with the Trustee within 45 days of such
designation an Officers' Certificate certifying that such designation has been
made and, in the case of clause (iii) of the first sentence hereof, the related
election of the Company in respect thereof.
"U.S. Government Obligations" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers,
general partners or trustees of any Person (irrespective of whether or not, at
the time, Capital Stock of any other class or classes shall have, or might
have, voting power by reasons of the happening of any contingency) or, with
respect to a partnership (whether general or limited), any general partner
interest in such partnership.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date
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and the making of such payment, by (ii) the then outstanding principal amount
of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person 100% of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall be at the time be
beneficially owned by such Person either directly or indirectly through Wholly
Owned Subsidiaries.
SECTION 1.2 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and 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 thereby.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
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(5) provisions apply to successive events and transactions;
(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;
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise; and
(8) terms defined in this Article include the plural as well as
the singular.
ARTICLE II
THE NOTES
SECTION 2.1 Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage in
addition to those set forth in Exhibit A hereto. The Company shall approve the
form of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(a) Global Notes. Notes offered and sold to QIBs in reliance on
Rule 144A and Institutional Accredited Investors who are not QIBs shall be
evidenced by one or more Global Notes, deposited with the Trustee, as custodian
for the Depositary, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests therein in accordance with the terms of
this Indenture. Any endorsement of a Global Note to reflect the amount of any
increase or decrease
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in the principal amount of outstanding Notes represented thereby shall be made
by the Trustee or Note Custodian, at the election of the Trustee, in accordance
with instructions given by the Holder thereof as required by Section 2.6
hereof.
Except as set forth in Section 2.6 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to
the Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
Section 2.2, authenticate and deliver the Global Notes, which (i) shall be
registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary pursuant to the
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Agent Members shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the
Trustee as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the
exercise of the rights of an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of Exhibit A attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.2 Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated, the Note shall nevertheless be valid.
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A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated pursuant to the terms of this Indenture.
The Trustee shall, upon written order of the Company signed by two
Officers, authenticate Notes for original issue in the aggregate principal
amount of up to $200,000,000 in one or more series. The aggregate principal
amount of Notes outstanding at any time may not exceed $200,000,000 except as
provided in Section 2.8. As of the date of this Indenture, there shall be
issued, authenticated and outstanding not more than $120,000,000 aggregate
principal amount of Notes. The written order shall specify the amount of Notes
to be authenticated and the date on which the Notes are to be authenticated.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company, any Affiliate of the Company, or any of their
respective Subsidiaries.
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency, where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may have one or more co- Registrars and one or more
additional Paying Agents. The term "Registrar" includes any co-Registrars and
the term "Paying Agent" includes any additional Paying Agent. The Company or
any of its Restricted Subsidiaries may act as Paying Agent or Registrar.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to Agent not a party to this
Indenture. The Company shall promptly notify the Trustee in writing of the name
and address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such and shall be duly compensated
therefor in accordance with the Trustee's customary fees for providing such
service.
The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company hereby initially appoints the Trustee as Registrar and
Paying Agent, and the Trustee hereby initially agrees so to act.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
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The Company initially appoints the Trustee to act as Note Custodian
with respect to the Global Notes.
SECTION 2.4 Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders and the Trustee all assets held by the Paying Agent for the payment of
principal, premium, interest or Liquidated Damages, if any, with respect to,
the Notes (whether such assets have been distributed to it by the Company or
any other obligor on the Notes), and shall notify the Trustee in writing of any
Default in making any such payment. If either of the Company or a Subsidiary of
the Company acts as Paying Agent, it shall segregate such assets and hold them
as a separate trust fund for the benefit of the Holders and the Trustee. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed, and the Trustee may at
any time during the continuance of any payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all assets held by it
to the Trustee and to account for any assets distributed. Upon distribution to
the Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent (if other than the Company or an Affiliate of
the Company) shall have no further liability for such assets.
SECTION 2.5 Noteholder 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 and shall otherwise comply with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each Interest Payment Date and at such other times
as the Trustee may request in writing a list in such form and as of such date
as the Trustee reasonably may require of the names and addresses of Holders
(which list may be conclusively relied upon by the Trustee) and the Company
shall otherwise comply with Section 312(a) of the TIA.
SECTION 2.6 Transfer and Exchange.
(a) 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 and the procedures of
the Depositary therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes to Persons required
to take delivery thereof in the form of an interest in another Global Note
shall be permitted as follows:
(i) 144A Global Note to Accredited Investor Global Note. If, at
any time, an owner of a beneficial interest in a 144A Global
Note deposited with the Depositary (or the Trustee as
custodian for the Depositary) wishes to transfer its
beneficial
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interest in such 144A Global Note to a Person who is required
or permitted to take delivery thereof in the form of an
interest in an Accredited Investor Global Note, such owner
shall, subject to the applicable procedures of the Depositary,
exchange or cause the exchange of such interest for an
equivalent beneficial interest in an Accredited Investor
Global Note as provided in this Section 2.6(a)(i). Upon
receipt by the Trustee of (A) instructions given in accordance
with the applicable procedures of the Depositary, from the
Depositary directing the Trustee to credit or cause to be
credited a beneficial interest in the Accredited Investor
Global Note in an amount equal to the beneficial interest in
the 144A Global Note to be exchanged, and (B) a certificate
given by the owner of such beneficial interest stating that
the transfer of such interest has been made in compliance with
the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the Securities Act, then
the Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount
at maturity of the applicable 144A Global Note and to increase
or cause to be increased the aggregate principal amount at
maturity of the applicable Accredited Investor Global Note by
the principal amount at maturity of the beneficial interest in
the 144A Global Note to be exchanged or transferred, to credit
or cause to be credited to the account of the Person specified
in such instructions, a beneficial interest in the Accredited
Investor Global Note equal to the reduction in the aggregate
principal amount at maturity of the 144A Global Note, and to
debit, or cause to be debited, from the account of the Person
making such exchange or transfer the beneficial interest in
the 144A Global Note that is being exchanged or transferred.
(ii) Accredited Investor Global Note to 144A Global Note. If, at
any time, an owner of a beneficial interest in an Accredited
Investor Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary wishes to transfer its
beneficial interest in such Accredited Investor Global Note to
a Person who is required or permitted to take delivery thereof
in the form of an interest in a 144A Global Note, such owner
shall, subject to the procedures of the Depositary, exchange
or cause the exchange of such interest for an equivalent
beneficial interest in a 144A Global Note as provided in this
Section 2.6(a)(ii). Upon receipt by the Trustee of (A)
instructions from the Depositary directing the Trustee, as
Registrar, to credit or cause to be credited a beneficial
interest in the 144A Global Note equal to the beneficial
interest in the Accredited Investor Global Note to be
exchanged and (B) a certificate given by the owner of such
beneficial interest stating that the Person transferring such
interest in an Accredited Investor Global Note reasonably
believes that the Person acquiring such interest in a 144A
Global Note is a QIB and is obtaining such beneficial interest
in a transaction meeting the requirements of Rule 144A, as
Registrar, shall instruct the Depositary to reduce or cause to
be reduced the aggregate principal amount at maturity of such
Accredited Investor Global Note and to increase or cause to be
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increased the aggregate principal amount at maturity of the
applicable 144A Global Note by the principal amount at
maturity of the beneficial interest in the Accredited Investor
Global Note to be exchanged or transferred, and the Trustee,
as Registrar, shall instruct the Depositary, concurrently with
such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a
beneficial interest in the applicable 144A Global Note equal
to the reduction in the aggregate principal amount at maturity
of such Accredited Investor Global Note and to debit or cause
to be debited from the account of the Person making such
transfer the beneficial interest in the Accredited Investor
Global Note that is being exchanged or transferred.
(b) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented to the Registrar with a request to register the transfer of
such Definitive Notes, or to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested only if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Notes surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(ii) in the case of a Definitive Note that is a Transfer
Restricted Note, shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Definitive 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 (in substantially the form set forth on the
reverse of the Note); or
(B) if such Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certification to that effect (in substantially the form
set forth on the reverse of the Note); or
(C) if such Definitive Note is being transferred
in accordance with Regulation S under the Securities Act, a
certification to that effect (in substantially the form set
forth on the reverse of the Note);
(D) if such Definitive Note is being transferred
to an Institutional Accredited Investor, a certification to
that effect (in substantially the form set forth on the
reverse of the Note) accompanied by a signed certificate in
the form of Exhibit B to this Indenture to the Trustee; or
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(E) if such Definitive Note is being transferred
in reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect (in substantially the form set forth on the reverse of
the Note) and if either the Trustee or the Company so
requests, an Opinion of Counsel satisfactory to the Company
and the Trustee to the effect that such transfer is in
compliance with the Securities Act.
(c) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note 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 Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer in form
reasonably satisfactory to the Company and the Trustee and the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing,
together with:
(i) if such Definitive Note is a Transfer Restricted
Note, certification, substantially in the form set forth on the
reverse of the Note, that such Definitive Note is being transferred
(x) to a QIB in accordance with Rule 144A under the Securities Act or
(y) to an Institutional Accredited Investor in accordance with
applicable provisions and regulations under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Note, written instructions directing the Trustee to make,
or to direct the Note Custodian to make, an endorsement on the
applicable Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the applicable Global
Note;
then the Trustee shall cancel such Definitive Note and cause, or direct the
Note Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Note Custodian, the
aggregate principal amount of Notes represented by the appropriate Global Note
to be increased accordingly. If no Global Notes are then outstanding, the
Company shall issue and the Trustee shall authenticate an appropriate new
Global Note in the appropriate principal amount.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Upon receipt by the Trustee 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 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 in a Transfer Restricted Note only,
the following additional information and documents (all of which may
be submitted by facsimile):
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(A) if such beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification from such person
to that effect (in substantially the form set forth on the
reverse of the Note); or
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certification to that effect from the
transferor (in substantially the form set forth on the reverse
of the Note); or
(C) if such beneficial interest is being
transferred in accordance with Regulation S under the
Securities Act, a certification to that effect (in
substantially the form set forth on the reverse of the Note);
(D) if such beneficial interest is being
transferred to an Institutional Accredited Investor, a
certification to that effect (in substantially the form set
forth on the reverse of the Note) accompanied by a signed
certificate in the form of Exhibit B to this Indenture to the
Trustee; or
(E) 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 from the transferee or transferor
(in substantially the form set forth on the reverse of the
Note) and if either the Trustee or the Company so requests, an
Opinion of Counsel satisfactory to the Company and the Trustee
to the effect that such transfer is in compliance with the
Securities Act;
then the Trustee or the Note Custodian, at the direction of the Trustee, will
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Custodian, the aggregate principal amount
of the applicable Global Note to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form
of an Officers' Certificate, the Trustee will authenticate and deliver to the
transferee a Definitive Note.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to subsection (a) this Section 2.6
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 Trustee. The
Trustee shall deliver such Definitive Notes to the persons in whose
names such 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 (g) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
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nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Notes in Absence of Depositary.
If at any time:
(i) the Depositary for the Notes notifies the Company and
the Company notifies the Trustee in writing that the Depositary is no
longer willing or able to continue as Depositary for the Global Notes
and a successor Depositary for the Global Notes is not appointed by
the Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause all Notes under this
Indenture to be in the form of Definitive Notes;
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Notes,
will authenticate and deliver Definitive Notes, in an aggregate principal
amount equal to the principal amount of the Global Notes in exchange for such
Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraph (ii),
each Note certificate evidencing the Global Notes and the Definitive
Notes (and all Notes issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION
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MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A NON-UNITED STATES PERSON IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS),
(2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Upon any sale, transfer or exchange of a Transfer
Restricted Note (including any Transfer Restricted Note represented by
a Global Note) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Note
that is a Definitive Note or that is represented by a Global
Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note
that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Note
(1) in the case of a sale or transfer pursuant to Rule 144
under the Securities Act, after delivery of a customary
Opinion of Counsel satisfactory to the Company and the Trustee
to the effect that such transfer is in compliance with the
Securities Act or (2) in the case of a sale or transfer
pursuant to an effective registration statement under the
Securities Act; and
(B) any such Transfer Restricted Note represented
by a Global Note shall be subject to the provisions of
subsection (a) and subsection (e) of this Section 2.6 hereof,
and the legend set forth above may be removed from such Global
Note if so directed by the Company.
(h) Cancellation and/or Adjustment of Global Note. At such time as
all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, redeemed,
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repurchased or cancelled, such Global Note shall be returned to or retained and
cancelled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for Definitive Notes,
redeemed, repurchased or cancelled, the principal amount of Notes represented
by such Global Note shall be reduced and an endorsement shall be made on such
Global Note, by the Trustee or the Note Custodian, at the direction of the
Trustee, to reflect such reduction.
(i) Obligations with respect to Transfers and Exchanges
of Definitive Note and Global Notes.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments, or similar governmental charge
payable upon exchanges or transfers pursuant to Sections 3.8, 4.20,
4.21 or 9.5).
(iii) The Registrar shall not be required to register the
transfer of or exchange of any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed
in part.
SECTION 2.7 Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims and submits an affidavit or other evidence, satisfactory to the
Trustee, to the Trustee to the effect that the Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any agent from any loss which any of them
may suffer if a Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion, may,
instead of issuing a new Note, pay such Note, upon satisfaction of the
conditions set forth in the preceding paragraph.
Every new Note issued pursuant to this Section 2.7 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by
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anyone, and such new Note shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies of any Holder with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.8 Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee (including any Note represented by a Global Note)
except those cancelled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee hereunder
and those described in this Section 2.8 as not outstanding. A Note does not
cease to be outstanding because the Company or an Affiliate of the Company
holds the Note, except as provided in Section 2.9.
If a Note is replaced pursuant to Section 2.7 (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 2.7.
If on a Redemption Date the Paying Agent (other than the Company or an
Affiliate of the Company) holds Cash or U.S. Government Obligations sufficient
to pay all of the principal and interest due on the Notes payable on that date
in accordance with Section 3.6 hereof and payment of the Notes called for
redemption is not otherwise prohibited pursuant to Article XII hereof or
otherwise, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.9 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, amendment, supplement, waiver or
consent, Notes owned by the Company or an Affiliate of the Company shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Notes that the Trustee knows are so owned shall be
disregarded. The Trustee may require an Officer's Certificate listing Notes
owned by the Company, a subsidiary of the Company or an Affiliate of the
Company.
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SECTION 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and, upon written order of the Company specifying the amount of Temporary Notes
and date on which the Temporary Notes are to be authenticated, the Trustee
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of definitive Notes but may have variations that the Company
reasonably and in good faith considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as permanent Notes authenticated and delivered
hereunder.
SECTION 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee,
or at the direction of the Trustee, the Registrar or the Paying Agent (other
than the Company or an Affiliate of the Company), and no one else, shall cancel
and, at the written direction of the Company, shall dispose of all Notes
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.7 and the Registered Exchange Offer, the Company may not issue new Notes to
replace Notes that have been paid or delivered to the Trustee for cancellation.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section 2.11, except as expressly permitted in
the form of Notes and as permitted by this Indenture.
SECTION 2.12 Defaulted Interest.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Note (or one or more predecessor Notes) is registered at the close of
business on the Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date plus, to the extent lawful,
interest payable on the defaulted interest at the same rate per annum borne by
the Notes (collectively, herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered Holder on the relevant Record Date, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the persons in whose names the Notes (or their
respective predecessor Notes) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Note
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and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of Cash equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such Cash when
deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as provided in this clause (1). Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it
appears in the Note register not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the persons in
whose names the Notes (or their respective predecessor Notes) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
SECTION 2.13 Persons Deemed Owners.
The Company, the Trustee, any Paying Agent and any authenticating
agent may treat the Person in whose name any Note is registered as the owner of
such Note for the purpose of receiving payments of principal of, premium, if
any, or interest on such Note and for all other purposes. None of the Company,
the Trustee, any Paying Agent or any authenticating agent shall be affected by
any notice to the contrary.
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ARTICLE III
REDEMPTION
SECTION 3.1 Right of Redemption.
Redemption of Notes, as permitted by any provision of this Indenture,
shall be made in accordance with Paragraph 5 of the Notes and this Article III.
SECTION 3.2 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.8 hereof and Paragraph 5 of the Notes, it
shall notify the Trustee in an Officer's Certificate of the Redemption Date,
the Redemption Price, the principal amount of Notes to be redeemed and stating
that the redemption will comply with the conditions contained herein and
whether it wants the Trustee to give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Notes to be
redeemed pursuant to Section 3.8 hereof and Paragraph 5 of the Notes by
crediting against any such redemption Notes it has not previously delivered to
the Trustee for cancellation, it shall so notify the Trustee of the amount of
the reduction and deliver such Notes with such notice.
The Company shall give each notice to the Trustee provided for in this
Section 3.2 at least 45 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee). Any such notice may be cancelled
at any time prior to notice of such redemption being mailed to any Holder and
shall thereby be void and of no effect.
SECTION 3.3 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed in such manner as complies with
any applicable depositary, legal and national securities exchange or automated
quotation system if any, on which the Notes are listed or, if the Notes are not
so listed, requirements, on a pro rata basis, by lot or by such other method as
the Trustee shall determine to be fair and appropriate, provided that no Notes
of $1,000 principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption and shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
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SECTION 3.4 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall send a notice of redemption to the Trustee and to each
Holder, by first class mail, whose Notes are to be redeemed. At the Company's
request, the Trustee shall give the notice of redemption in the Company's name
and at the Company's expense. Each notice for redemption shall identify the
Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest and Liquidated Damages, if any, to be paid upon
such redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Notes called for redemption must be surrendered
to the Paying Agent at the address specified in such notice to collect
the Redemption Price;
(5) that, unless (a) the Company defaults in its
obligation to deposit Cash with the Paying Agent in accordance with
Section 3.6 hereof or (b) such redemption payment is prohibited
pursuant to Article XII hereof or otherwise, Notes called for
redemption cease to accrue interest and Liquidated Damages, if any, on
and after the Redemption Date, and the only remaining right of the
Holders of such Notes is to receive payment of the Redemption Price,
including accrued and unpaid interest and Liquidated Damages, if any,
thereon to, but excluding, the Redemption Date, upon surrender to the
Paying Agent of the Notes called for redemption and to be redeemed;
(6) if any Note is being redeemed in part, the portion of
the principal amount, equal to $1,000 or any integral multiple
thereof, of such Note to be redeemed and that, after the Redemption
Date, and upon surrender of such Note, a new Note or Notes in
aggregate principal amount equal to the unredeemed portion thereof
will be issued;
(7) if less than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Notes to
be redeemed and the aggregate principal amount of Notes to be
outstanding after such partial redemption;
(8) the CUSIP number of the Notes to be redeemed; and
(9) that the notice is being sent pursuant to this
Section 3.4 and pursuant to the redemption provisions of Paragraph 5
of the Notes.
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SECTION 3.5 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.4,
Notes called for redemption become due and payable on the Redemption Date and
at the Redemption Price, including accrued and unpaid interest and Liquidated
Damages, if any, to the Redemption Date. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the Redemption
Price, including accrued and unpaid interest and Liquidated Damages, if any,
to, but excluding, the Redemption Date; provided that if the Redemption Date is
after a regular Record Date and on or prior to the corresponding Interest
Payment Date, the accrued interest and Liquidated Damages, if any, shall be
payable to the Holder of the redeemed Notes registered on the relevant Record
Date; and provided, further, that if a Redemption Date is a Legal Holiday,
payment shall be made on the next succeeding Business Day and no interest or
Liquidated Damages shall accrue for the period from such Redemption Date to
such succeeding Business Day.
SECTION 3.6 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (other than the Company or an Affiliate of the Company) Cash
sufficient to pay the Redemption Price of, including accrued and unpaid
interest on, and Liquidated Damages with respect to, all Notes to be redeemed
on such Redemption Date (other than Notes or portions thereof called for
redemption on that date that have been delivered by the Company to the Trustee
for cancellation). The Paying Agent shall promptly return to the Company any
Cash so deposited which is not required for that purpose upon the written
request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Notes called for redemption
is not prohibited under Article XII or otherwise, interest and Liquidated
Damages on the Notes to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Notes are presented for
payment. Notwithstanding anything herein to the contrary, if any Note
surrendered for redemption in the manner provided in the Notes shall not be so
paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, Liquidated Damages shall continue to
accrue and be paid from the Redemption Date if so required pursuant to Section
3 of the Registration Rights Agreement and interest shall continue to accrue
and be paid from the Redemption Date until such payment is made on the unpaid
principal, and, to the extent lawful, on any interest not paid on such unpaid
principal, in each case at the rate and in the manner provided in Section 4.1
hereof and the Note.
SECTION 3.7 Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder,
without service charge to the Holder, a
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new Note or Notes equal in principal amount to the unredeemed portion of the
Note surrendered.
SECTION 3.8 Optional Redemption.
(a) The Company will not have the right to redeem any Notes prior
to April 15, 2002.
(b) Notwithstanding the foregoing, on or prior to April 15, 2000,
the Company will have the right to redeem, at its option, at any time or from
time to time up to 35% of the aggregate original principal amount of the Notes
(including, for this purpose, all series of notes issued under this Indenture)
issued at a redemption price equal to 111.25% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to,
but excluding, the Redemption Date, with the net cash proceeds of one or more
Public Equity Offerings; provided, however, that at least $78,000,000 in
aggregate principal amount of Notes remains outstanding following each such
redemption; provided, further, that notice of such redemption shall be given
not later than 30 days, and such redemption shall occur not later than 60 days,
after the date of closing of any such Public Equity Offering.
(c) On or after April 15, 2002, the Company will have the right to
redeem all or any part of the Notes at the Redemption Prices specified in
Paragraph 5 of the Notes under the caption "Redemption," in each case including
accrued and unpaid interest and Liquidated Damages, if any, to the Redemption
Date.
SECTION 3.9 Mandatory Redemption.
Except as set forth under Sections 4.20 and 4.21 hereof, the Company
shall not be required to make mandatory redemption payments with respect to the
Notes.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes.
The Company shall pay the principal of, interest on, and Liquidated
Damages with respect to, the Notes on the dates and in the manner provided in
the Notes and the Registration Rights Agreement, as applicable. An installment
of principal of, interest on, or Liquidated Damages with respect to, the Notes
shall be considered paid on the date it is due if the Trustee or Paying Agent
(other than the Company or an Affiliate of the Company) holds for the benefit
of the Holders, on or before 10:00 a.m. New York City time on that date, Cash
deposited and designated for and sufficient to pay the installment.
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The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Notes compounded
semi-annually, to the extent lawful.
SECTION 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 14.2.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency. The Company hereby initially designates the corporate trust office of
the Trustee as such office.
SECTION 4.3 Corporate Existence.
Subject to Article V, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Subsidiaries in
accordance with the respective organizational documents of each of them and the
rights (charter and statutory) and corporate franchises of the Company and each
of its Subsidiaries; provided, however, that the Company shall not be required
to preserve, with respect to itself, any right or franchise, and with respect
to any of its Subsidiaries, any such existence, right or franchise, if (a) the
Company shall, in good faith, reasonably determine that the preservation
thereof is no longer desirable in the conduct of the business of such entity
and (b) the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.4 Payment of Taxes and Other Claims.
Except with respect to immaterial items, the Company shall, and shall
cause each of its Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon the Company or any of
its Subsidiaries or any of their respective properties and assets and (ii) all
lawful claims,
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whether for labor, materials, supplies, services or anything else, which have
become due and payable and which by law have or may become a Lien upon the
property and assets of the Company or any of its Subsidiaries; provided,
however, that neither the Company nor any Subsidiary shall 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 disputed amounts adequate
reserves have been established in accordance with GAAP.
SECTION 4.5 Maintenance of Properties and Insurance.
The Company shall cause all material properties used or useful to the
conduct of its business and the business of each of its Subsidiaries to be
maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in its reasonable good faith judgment may be
necessary, so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this
Section 4.5 shall prevent the Company or any Subsidiary from discontinuing any
operation or maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is (a), in the judgment of the
Company, desirable in the conduct of the business of such entity and (b) not
disadvantageous in any material respect to the Holders.
The Company shall provide, or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith
judgment of the Company is adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent manner, with (except
for self-insurance) reputable insurers or with the government of the United
States of America or an agency or instrumentality thereof, in such amounts,
with such deductibles, and by such methods as shall be customary, in the
reasonable, good faith judgment of the Company and adequate and appropriate for
the conduct of the business of the Company and such Subsidiaries in a prudent
manner for entities similarly situated in the industry, unless failure to
provide such insurance (together with all other such failures) would not have a
material adverse effect on the financial condition or results of operations of
the Company or such Subsidiary.
SECTION 4.6 Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days after
the end of its fiscal year an Officers' Certificate complying with Section
314(a)(4) of the TIA and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture and further stating, as to each such Officer signing such
certificate, whether or not the signer knows of any failure by the Company or
any Subsidiary of the Company to comply with any conditions
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or covenants in this Indenture and, if such xxxxxx does know of such a failure
to comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant fiscal
year end on any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly upon becoming aware of any
Default, Event of Default or fact which would prohibit the making of any
payment to or by the Trustee in respect of the Notes, an Officers' Certificate
specifying such Default, Event of Default or fact and what action the Company
is taking or proposes to take with respect thereto. The Trustee shall not be
deemed to have knowledge of any Default, any Event of Default or any such fact
unless one of its Trust Officers receives notice thereof from the Company or
any of the Holders.
SECTION 4.7 Reports.
Whether or not the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall deliver to the
Trustee and to each Holder and to prospective purchasers of Notes identified to
the Company by an Initial Purchaser, within 15 days after it is or would have
been required to file such with the SEC, annual and quarterly consolidated
financial statements substantially equivalent to financial statements that
would have been included in reports filed with the SEC if the Company was
subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Company's certified independent public accountants as such would be required in
such reports to the SEC and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required.
SECTION 4.8 Limitation on Status as Investment Company.
Neither the Company nor any of its Subsidiaries shall become an
"investment company" (as that term is defined in the Investment Company Act of
1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
SECTION 4.9 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium of, interest on, or Liquidated Damages
with respect to, 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 Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede
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the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 4.10 Rule 144A Information Requirement.
If at any time there are Transfer Restricted Notes outstanding and the
Company shall cease to have a class of equity securities registered under
Section 12(g) of the Exchange Act or shall cease to be subject to Section 15(d)
of the Exchange Act, the Company shall furnish to the Holders or beneficial
holders of the Notes and prospective purchasers of Notes designated by the
Holders of Transfer Restricted Notes, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
until such time as the Shelf Registration Statement has become effective under
the Securities Act. The Company shall also furnish such information during the
pendency of any suspension of effectiveness of the Shelf Registration
Statement.
SECTION 4.11 Limitation on the Incurrence of Indebtedness and
Issuance of Disqualified Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to
(collectively, "incur" and, correlatively, "incurred" and "incurrence") any
Indebtedness (including, without limitation, Acquired Debt), and the Company
shall not issue any Disqualified Stock and shall not permit any of its
Restricted Subsidiaries to issue any preferred stock; provided, however, that
the Company and its Subsidiaries may incur Indebtedness (including Acquired
Indebtedness) if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred, determined on a pro forma basis in
accordance with Article 11 of Regulation S-X under the Securities Act, or any
successor provision, as if the additional Indebtedness had been incurred at the
beginning of such four-quarter period, would have been greater than 2.00 to
1.00.
The foregoing limitations will not apply to:
(i) Indebtedness incurred by the Company under the Credit
Facility in an aggregate principal amount not to exceed the Borrowing
Base Amount;
(ii) additional Indebtedness incurred by the Company in
respect of Capital Lease Obligations or Purchase Money Obligations in
an aggregate principal amount not to exceed $10,000,000 at any time
outstanding;
(iii) Existing Indebtedness outstanding on the date of this
Indenture;
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(iv) Indebtedness represented by the Notes and this
Indenture;
(v) Hedging Obligations; provided that the notional
principal amount of any Interest Rate Agreement does not exceed the
principal amount of the Indebtedness to which such agreement relates;
provided, further, that any Currency Agreement does not increase the
outstanding loss potential or liabilities other than as a result of
fluctuations in foreign currency exchange rates;
(vi) Indebtedness of the Company to any of its Wholly
Owned Subsidiaries that is a Restricted Subsidiary, and Indebtedness
of any Wholly Owned Subsidiary of the Company that is a Restricted
Subsidiary to the Company or any of its Wholly Owned Subsidiaries that
is a Restricted Subsidiary (the Indebtedness incurred pursuant to this
clause (vi) being hereinafter referred to as "Intercompany
Indebtedness"); provided that in the case of Indebtedness of the
Company such obligations shall be unsecured and subordinated in all
respects to the Company's obligations pursuant to the Notes; provided,
further, that an incurrence of Indebtedness shall be deemed to have
occurred upon (a) any sale or other disposition of Intercompany
Indebtedness to a Person other than the Company or any of its
Restricted Subsidiaries, (b) any sale or other disposition of Equity
Interests of any Restricted Subsidiary of the Company which holds
Intercompany Indebtedness such that such Restricted Subsidiary ceases
to be a Restricted Subsidiary after such sale or other disposition or
(c) designation of a Restricted Subsidiary as an Unrestricted
Subsidiary;
(vii) in addition to Indebtedness specified in clauses (i)
through (vi) above and clause (viii) below, additional Indebtedness in
an aggregate principal amount not to exceed $15,000,000 at any time
outstanding; and
(viii) the incurrence by the Company of Indebtedness issued
in exchange for, or the proceeds of which are used to extend,
refinance, renew, replace, defease or refund Indebtedness incurred
pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of this covenant or pursuant to clauses (iii) or (iv)
of this covenant in whole or in part (the "Refinancing Indebtedness");
provided, however, that (A) the aggregate principal amount of such
Refinancing Indebtedness shall not exceed the aggregate principal
amount of Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded; (B) the Refinancing Indebtedness shall have a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (C) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded is pari passu with or subordinated in right of payment to
the Notes, the Refinancing Indebtedness shall be pari passu with or
subordinated, as the case may be, in right of payment to the Notes on
terms at least as favorable to the Holders of Notes as those contained
in the documentation governing the Indebtedness being extended,
refinanced,
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renewed, replaced, defeased or refunded (any such extension,
refinancing, renewal, replacement, defeasance or refunding being
referred to as a "Permitted Refinancing").
SECTION 4.12 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any
distribution on account of Equity Interests, other than
(x) dividends or distributions payable
in Equity Interests (other than Disqualified Stock) of the
Company or
(y) dividends or distributions payable
to the Company or a Wholly Owned Subsidiary of the Company
that is a Restricted Subsidiary;
(ii) purchase, redeem or otherwise acquire or
retire for value any Equity Interests of the Company or any Affiliate
of the Company (other than any such Equity Interests owned by the
Company or a Wholly Owned Subsidiary of the Company that is a
Restricted Subsidiary);
(iii) purchase, redeem, repay, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated in
right of payment to the Notes;
(iv) make any Investment (other than a Permitted
Investment); or
(v) make any payment of any amount currently
recorded by the Company as payable to Holding in respect of the
undistributed merger consideration relating to the Recapitalization
(all such payments and other actions set forth in clauses (i) through
(v) above being collectively referred to as "Restricted Payments");
unless, at the time of and after giving effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(B) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.11; and
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(C) such Restricted Payment (the amount of any such payment, if
other than cash, to be determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a resolution in an
Officers' Certificate delivered to the Trustee), together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (including Restricted Payments
permitted by the next succeeding paragraph, except as set forth therein), shall
not exceed the sum of (w) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) commencing on the first day of the
Company's second fiscal quarter in fiscal year 1997 and ending on the last day
of the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment (or,
if such Consolidated Net Income for such period is a deficit, 100% of such
deficit as a negative number), plus (x) 100% of the aggregate net cash proceeds
received by the Company from the issuance or sale since the date of initial
issuance of the Notes of Equity Interests of the Company or of debt securities
of the Company that have been converted into such Equity Interests (other than
Equity Interests (or convertible debt securities) sold to a Subsidiary of the
Company and other than Disqualified Stock or debt securities that have been
converted into Disqualified Stock), plus (y) the aggregate cash received by the
Company as capital contributions to the Company after the date of initial
issuance of the Notes (other than from a Subsidiary), plus (z) any cash
received by the Company after the date of initial issuance of the Notes as a
dividend or distribution from any of its Unrestricted Subsidiaries or from the
sale of any of its Unrestricted Subsidiaries less the cost of disposition and
taxes, if any (but in each case excluding any such amounts included in
Consolidated Net Income).
(b) The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at said date of declaration
such payment would have complied with the provisions of this
Indenture;
(ii) the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company, or the
defeasance, redemption or repurchase of subordinated Indebtedness in
exchange for, or out of the proceeds of, the substantially concurrent
sale (other than to a Subsidiary of the Company) of Equity Interests
of the Company (other than any Disqualified Stock) or out of the net
proceeds of a substantially concurrent cash capital contribution
received by the Company; provided that the amount of any such proceeds
that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (x) of
the preceding paragraph;
(iii) the repayment, defeasance, redemption or
repurchase of subordinated Indebtedness with the net proceeds from an
incurrence of Refinancing Indebtedness in a Permitted Refinancing;
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(iv) the purchase, redemption or retirement by the
Company of shares of its common stock held by an employee or former
employee of the Company or any of its Restricted Subsidiaries issued
under the Management Plans pursuant to the terms of such Management
Plans; provided that (a) the purchase, redemption or retirement
results from the retirement, termination of employment, death or
disability (as defined in the relevant Management Plan) of the
employee or former employee and (b) the amount of any such payments
does not exceed $2,000,000 in the aggregate;
(v) the payment of dividends to Holding in an
amount equal to the amount required by Holding to pay federal, state
and local income taxes to the extent such income taxes are
attributable to the income of the Company;
(vi) distributions of up to $500,000 annually to
Holding to pay its bona fide operating expenses;
(vii) distributions to Holding from the proceeds of
the Offering in an amount sufficient to permit Holding to redeem
certain of its Equity Interests in existence as of the date of this
Indenture and as described in the Offering Memorandum;
(viii) payments to purchase a life insurance policy,
and the use of the proceeds therefrom, to fund the Company's
obligations pursuant to the Xxxxx Put Agreement;
(ix) distributions to Holding of an amount equal
to such amounts as may be necessary to fund a final judgment, final
arbitration or mediation award or final settlement of pending
litigation of Holding related to the Recapitalization (and to pay
reasonable expenses, including legal fees, in connection therewith);
(x) any Investment made with the proceeds of a
substantially concurrent sale (other than to a Restricted Subsidiary
of the Company) of Capital Stock of the Company (other than
Disqualified Stock); provided, however, the proceeds of such sale
shall not be (and have not been) included in clause (c) of the
immediately preceding paragraph;
(xi) the repayment in full of all Obligations in
respect of the Mannesmann Senior Subordinated Debt outstanding as of
the date of this Indenture; or
(xii) other restricted payments of up to
$1,000,000;
provided, further, however, that at the time of, and after giving effect to,
any Restricted Payment permitted under clauses (i), (ii), (iii) and (iv) no
Default or Event of Default shall have occurred and be continuing; provided,
further, that the Restricted Payments described in clauses
00
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(xxx), (xxxx), (xx), (xi) and (xii) shall not be counted in computing the
aggregate amount of all Restricted Payments made pursuant to this Indenture.
For purposes of the foregoing calculations, the amount of any
Investment that constitutes a Restricted Payment shall be equal to the greater
of (i) the net book value of such Investment and (ii) the fair market value of
such Investment (in each case as certified by a resolution of the independent
directors of the Company if the book value or fair market value of such
investment exceeds $1,000,000).
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.12 were computed, which calculations
may be based upon the Company's latest available financial statements.
SECTION 4.13 Limitation on Liens.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Liens on any asset now owned or acquired after the date of
this Indenture or any income or profits therefrom or assign or convey any right
to receive income therefrom, except Permitted Liens.
SECTION 4.14 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries (a) on its Capital Stock
or (b) with respect to any other interest or participation in, or
measured by, its profits;
(ii) pay any Indebtedness owed to the Company or any of
its Restricted Subsidiaries;
(iii) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(iv) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries;
except for such encumbrances or restrictions existing under or by reason of (a)
Existing Indebtedness as in effect on the date of this Indenture, (b) this
Indenture and the Notes, (c) applicable law, (d) any instrument governing
Indebtedness or Capital Stock of a Person acquired
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by the Company or any of its Restricted Subsidiaries as in effect at the time
of such acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, (e) customary nonassignment provisions in leases entered into in the
ordinary course of business and consistent with past practices, (f) Purchase
Money Obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iv) above on the
property so acquired, or (g) Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Refinancing
Indebtedness are no more restrictive with respect to the provisions set forth
in clauses (i), (ii), (iii) and (iv) above than those contained in the
agreements governing the Indebtedness being refinanced.
SECTION 4.15 Limitation on Transactions with Affiliates.
The Company shall not and shall not permit, cause, or suffer any
Restricted Subsidiary of the Company to, directly or indirectly, sell, lease,
license, transfer or otherwise dispose of any of its properties or assets to,
or purchase any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable arms' length
transaction by the Company or such Restricted Subsidiary with an
unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect
to any Affiliate Transaction involving aggregate payments in excess of
$1,000,000, a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and such Affiliate Transaction is
approved by a majority of the disinterested members, if any, of the
Board of Directors and (b) with respect to any Affiliate Transaction
involving aggregate payments in excess of $5,000,000, an opinion as to
the fairness to the Company or such Restricted Subsidiary from a
financial point of view issued by a nationally recognized independent
financial advisor;
provided, however, that (i) any reasonable fees and compensation provided to,
and indemnity provided on behalf of, officers, directors and employees of the
Company and its Restricted Subsidiaries as determined in good faith by the
Board of Directors of the Company, (ii) transactions between or among the
Company and its Wholly Owned Subsidiaries that are Restricted Subsidiaries,
(iii) Restricted Payments permitted by Section 4.12, (iv) loans in aggregate
amount not to exceed $1,000,000 at any time outstanding to employees of the
Company and its Restricted Subsidiaries in the ordinary course of business
which are approved
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by the Board of Directors of the Company and (v) the repayment of the Company's
Existing Indebtedness under the Credit Facility and the Mannesmann Senior
Subordinated Debt and distribution of funds to Holdings for the redemption of
certain of its Equity Interests existing as of the date of this Indenture, in
each case, shall not be deemed to be Affiliate Transactions.
SECTION 4.16 Limitation on Guarantees by Subsidiaries.
The Company shall not permit any Restricted Subsidiary, 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 any Person other than Indebtedness under the Credit Facility or
Indebtedness incurred pursuant to Hedging Obligations incurred pursuant to
Section 4.11 unless:
(i) such Restricted Subsidiary simultaneously executes
and delivers a guarantee of payment of the Securities by such
Restricted Subsidiary pursuant to the terms of Exhibit C hereto (the
"Guarantee") which Guarantee shall be accompanied by a supplemental
indenture in a form reasonably satisfactory to the Trustee which
amends this Indenture to provide for the addition of Article X
substantially in the form of Exhibit D; and
(ii) (a) if any such assumption, guarantee or other
liability of such Restricted Subsidiary is provided in respect of
Senior Indebtedness, the guarantee or other instrument provided by
such Restricted Subsidiary in respect of such Senior Indebtedness may
be superior to the Guarantee pursuant to subordination provisions no
less favorable to the holders of the Notes than those contained in
Article XII hereto and (b) if such assumption, guarantee or other
liability of such Subsidiary is provided in respect of Indebtedness
that is expressly subordinated to the Notes, the guarantee or other
instrument provided by such Restricted Subsidiary in respect of such
subordinated Indebtedness shall be subordinated to the Guarantee
pursuant to subordination provisions not less favorable to the holders
of the Notes than those set forth in Article XII hereto. The
supplemental indenture shall supplement this Indenture by, among other
things, creating an additional Article X applicable to such Restricted
Subsidiary and any other Guarantors in the form set forth in Exhibit D
hereto and, in connection with the execution and delivery of the
supplemental indenture, such Subsidiary shall execute and deliver a
Guarantee substantially in the form of Exhibit C hereto. Such Article
X contemplated therein shall not become effective until the provisions
of Section 10.2 of Exhibit D hereto have been complied with.
Notwithstanding the foregoing, if the Guarantee is required to be a
subordinated guarantee, then the supplemental indenture may amend and
supplement Article X to include such provisions comparable to those
set forth in Article XII as are necessary to effect the purposes of
this Section 4.16.
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Notwithstanding the foregoing, any such Guarantee by a
Guarantor of the Securities shall be subject to release under the
conditions described in Sections 10.4 and 10.5 of Exhibit D hereto.
SECTION 4.17 Limitation on Layering Debt.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Indebtedness of the Company and senior in any
respect in right of payment to the Notes.
SECTION 4.18 Limitation on Issuance and Sale of Stock of
Restricted by Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries, to:
(i) transfer, convey, sell or otherwise dispose of any
shares of Capital Stock of any Restricted Subsidiary of the Company
(other than to the Company or a Wholly Owned Subsidiary that is a
Restricted Subsidiary of the Company), except that the Company and its
Restricted Subsidiaries may, in any single transaction, sell all, but
not less than all, of the issued and outstanding Capital Stock of a
Restricted Subsidiary to any Person, subject to complying with Section
4.20; and
(ii) issue shares of Capital Stock of a Restricted
Subsidiary (other than directors' qualifying shares), or securities
convertible into, or warrants, rights or options to subscribe for or
purchase shares of, Capital Stock of a Restricted Subsidiary of the
Company to any Person other than to the Company or a Wholly Owned
Subsidiary that is a Restricted Subsidiary of the Company.
SECTION 4.19 Payments for Consent.
Neither the Company, nor any of the Company's Subsidiaries, shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions hereof or the Notes unless such consideration is offered to be paid
or agreed to be paid to all holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
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SECTION 4.20 Asset Sales.
Neither the Company nor any of its Restricted Subsidiaries shall
engage in any Asset Sale, unless:
(i) the Company or such Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value (evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to
the Trustee) of the assets sold or otherwise disposed of; and
(ii) except in the case of Permitted Asset Swaps, at least
75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents;
provided, however, that the amount of (a) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet or in the
notes thereto) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms subordinated in right of payment to the
Notes) that are assumed by the transferee of any such assets and (b) any notes
or other obligations received by the Company or such Restricted Subsidiary from
such transferee that are immediately converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash so received), shall
be deemed to be cash for purposes of this provision.
Within 360 days after the receipt of the Net Proceeds from an Asset
Sale, the Company shall apply the Net Proceeds from such Asset Sale to (i)
permanently reduce Senior Indebtedness, (ii) permanently reduce Indebtedness of
the Restricted Subsidiary that sold properties or assets in the Asset Sale, or
(iii) acquire properties and assets to replace the properties and assets that
were the subject of the Asset Sale or properties and assets that will be used
in the same or a similar line of business as the Company was engaged in on the
date of this Indenture or reasonable extensions, developments or expansions
thereof or activities ancillary thereto. Pending the final application of any
such Net Proceeds, the Company may invest such Net Proceeds in any manner that
is not prohibited by this Indenture. Any Net Proceeds from the Asset Sale that
are not applied as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds."
When the aggregate cumulative amount of Excess Proceeds exceeds
$5,000,000, the Company shall make an offer to all Holders of Notes to purchase
the maximum principal amount of Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase, in accordance with the procedures set forth in
this Section 4.20 (an "Asset Sale Offer"). To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use such deficiency for general corporate
purposes in any manner provided by this Indenture. If the aggregate principal
amount of Notes surrendered by Holders thereof exceeds
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the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
In the event that the Company shall be required to commence an Asset
Sale Offer to all Holders to purchase Notes pursuant to this Section 4.20, it
shall follow the procedures specified below.
The Asset Sale Offer shall be commenced within 30 days following the
first date on which the Company has cumulative Excess Proceeds of at least
$5,000,000 and remain open for a period of at least 30 and not more than 40
days, except to the extent that a longer period is required by applicable law
(the "Repurchase Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Repurchase Date"), the Company shall
purchase the principal amount of Notes required to be purchased pursuant to
this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an
aggregate principal amount less than the amount of Excess Proceeds subject to
such Asset Sale Offer have been tendered, all Notes tendered in response to the
Asset Sale Offer. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made.
If the Repurchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest
and Liquidated Damages shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages shall be payable to Holders who tender Notes
pursuant to the Asset Sale Offer.
Upon the commencement of a Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee or to each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to
this Section 4.20 and the length of time the Asset Sale Offer shall
remain open;
(b) the Asset Sale Offer, the Repurchase Price and the
Repurchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Repurchase Date;
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(e) that Holders electing to have a Note purchased
pursuant to a Asset Sale Offer may only elect to have all of such Note
purchased and may not elect to have only a portion of such Note
purchased;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, or transfer by book-entry transfer,
to the Company, a depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice at least three days
before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Repurchase
Offer Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Repurchase Price, the Trustee shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(i) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
The Company, the Depositary or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after the Repurchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon written order from the Company shall authenticate and mail or deliver such
new Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Repurchase Date.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws, rules and regulations thereunder to
the extent such laws, rules and regulations are applicable in connection with
the repurchase of Notes pursuant to Asset Sale Offer.
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SECTION 4.21 Change of Control.
(a) In the event that a Change of Control occurs, each Holder
shall have the right, at such Holder's option, subject to the terms and
conditions of this Indenture, to require the Company to repurchase all or any
part of such Holder's Notes (provided, that the principal amount of such Notes
must be $1,000 or an integral multiple thereof) on a date to be established by
the Company (the "Change of Control Payment Date") after the occurrence of such
Change of Control, at a cash price (the "Change of Control Repurchase Price")
equal to 101% of the aggregate principal amount thereof, together with accrued
and unpaid interest and Liquidated Damages, if any, thereon to, but excluding,
the Change of Control Payment Date.
(b) In the event that, pursuant to this Section 4.21, the Company
shall be required to commence an offer to purchase Notes (the "Change of
Control Offer"), the Company shall follow the procedures set forth in this
Section 4.21 as follows:
(1) the Company shall prepare and mail, with a copy to
the Trustee, or at the option of the Company and at the expense of the
Company, by the Trustee, the Change of Control Offer within 30 days
following a Change of Control to each Holder of Notes;
(2) the Change of Control Offer shall remain open for at
least 30 and not more than 40 days (unless otherwise required by
applicable law) following its commencement, except to the extent that
a longer period is required by applicable law;
(3) upon the expiration of a Change of Control Offer, the
Company shall purchase all Notes tendered in response to the Change of
Control Offer;
(4) if the Change of Control Payment Date is on or after
an interest payment record date and on or before the related Interest
Payment Date and Damage Payment Date, any accrued interest and
Liquidated Damages will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no
additional interest or Liquidated Damages will be payable to
Noteholders who tender Notes pursuant to the Change of Control Offer;
(5) the Company shall provide the Trustee with notice of
the Change of Control Offer at least five Business Days before the
commencement of any Change of Control Offer; and
(6) on or before the commencement of any Change of
Control Offer, the Company or the Trustee (upon the request and at the
expense of the Company) shall send, by first-class mail, a notice to
each of the Noteholders, which (to the extent consistent with this
Indenture) shall govern the terms of the Change of Control Offer and
shall state:
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(i) that the Change of Control Offer is being
made pursuant to such notice and this Section 4.21 and that all Notes,
or portions thereof, tendered will be accepted for payment;
(ii) the Change of Control Repurchase Price
(including the amount of accrued and unpaid interest and Liquidated
Damages, if any) the Change of Control Payment Date and the Change of
Control Put Date;
(iii) that any Note, or portion thereof, not
tendered or accepted for payment will continue to accrue interest and
Liquidated Damages, if any;
(iv) that, unless the Company defaults in
depositing Cash with the Paying Agent in accordance with the last
paragraph of this clause (b) or such payment is prevented pursuant to
Article XII, any Note, or portion thereof, accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
and Liquidated Damages after the Change of Control Payment Date;
(v) that Holders electing to have a Note, or
portion thereof, 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 (which may not for purposes of this Section 4.21,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Change of Control Payment Date and (b)
the third Business Day following the expiration of the Change of
Control Offer (such earlier date being the "Change of Control Put
Date");
(vi) that Holders will be entitled to withdraw
their election, in whole or in part, if the Paying Agent (which may
not for purposes of this Section 4.21, notwithstanding anything in
this Indenture to the contrary, be the Company or any Affiliate of the
Company) receives, up to the close of business on the Change of
Control Put Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Notes the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of Notes
purchased; and
(vii) a brief description of the events resulting
in such Change of Control.
On or before the Change of Control Date, the Company shall (i) accept
for payment Notes or portions thereof properly tendered pursuant to the Change
of Control Offer on or before the Change of Control Payment Date, (ii) deposit
with the Paying Agent Cash sufficient to pay the Change of Control Repurchase
Price of all Notes or portions thereof so tendered and
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(iii) deliver to the Trustee Notes so accepted together with an Officers'
Certificate listing the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to Holders of Notes so accepted
payment in an amount equal to the Change of Control Repurchase Price (together
with accrued and unpaid interest and Liquidated Damages, if any), and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Note or Notes equal in principal amount to any unpurchased portion of the Notes
surrendered. Any Notes not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws, rules and regulations thereunder to
the extent such laws, rules and regulations are applicable in connection with
the repurchase of Notes pursuant to Change of Control Offer.
ARTICLE V
SUCCESSORS
SECTION 5.1 Limitation on Merger, Consolidation or Sale of
Assets.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person or
entity unless:
(i) the Company is the surviving corporation or the
Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately before or immediately after giving effect
to such transaction no Default or Event of Default shall have occurred
and be continuing; and
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(iv) the Company or any Person formed by or surviving any
such consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
will, at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the beginning of
the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.11.
SECTION 5.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company's assets that meets the requirements of Section
5.1 hereof.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation,
by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(a) failure to pay any installment of interest on, or
Liquidated Damages, if any, with respect to, any of the Notes as and
when the same becomes due and payable, and the continuance of such
failure for a period of 30 days, whether or not such payment is
prohibited by Article XII;
(b) failure to pay all or any part of the principal of,
or premium, if any, on the Notes when and as the same become due and
payable at maturity, redemption, repurchase or otherwise, whether or
not such payment is prohibited by Article XII;
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(c) failure by the Company to comply with the provisions
of Section 4.20, Section 4.21 or Article V;
(d) failure by the Company or any Restricted Subsidiary
to observe or perform any covenant or agreement contained in the Notes
or this Indenture (other than a default in the performance of any
covenant or agreement which is specifically dealt with elsewhere in
this Section 6.1), and continuance of such failure for a period of 30
days after there has been given, by registered or certified mail, to
the Company by the Trustee, or to the Company and the Trustee by
Holders of at least 25% in aggregate principal amount of the then
outstanding Notes, a written notice specifying such failure,
requesting it to be remedied and stating that such notice is a "Notice
of Default" hereunder;
(e) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date of
this Indenture, which default (a) is caused by a failure to pay
principal of such Indebtedness when due and prior to the expiration of
the grace period provided in such Indebtedness (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case described in clauses (a) and (b) of
this subsection (e), the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which
has been so accelerated, aggregates $5,000,000 or more;
(f) failure of the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of
$5,000,000, which judgments have not been paid, stayed, bonded or
discharged for a period (during which execution shall not be
effectively stayed) of 60 days (or, in the case of any such final
judgment which provides for payment over time, which shall so remain
unstayed, unbonded or undischarged beyond any applicable payment date
provided therein);
(g) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of
its Restricted Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any
of its Restricted Subsidiaries under any bankruptcy or similar law,
and such decree, judgment, or order shall have continued undischarged
and unstayed for a period of 60 days; or a decree or order of a court
of competent jurisdiction over the appointment of a receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of the
Company, any of its Restricted Subsidiaries, or of the property of any
such Person, or for the winding up or liquidation of the affairs of
any such Person, shall have been
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entered, and such decree, judgment, or order shall have remained in
force undischarged and unstayed for a period of 60 days; or
(h) the Company or any of its Restricted Subsidiaries
shall institute proceedings to be adjudicated a voluntary bankrupt, or
shall consent to the filing of a bankruptcy proceeding against it, or
shall file a petition or answer or consent seeking reorganization
under any bankruptcy or similar law or similar statute, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a Custodian, receiver, liquidator, trustee, or assignee
in bankruptcy or insolvency of it or any of its assets or property, or
shall make a general assignment for the benefit of creditors; or take
any corporate action in furtherance of or to facilitate, conditionally
or otherwise, any of the foregoing.
Notwithstanding the 30-day period and notice requirement contained in
Section 6.1(d) above, with respect to a default under Section 4.21, the 30-day
period referred to in Section 6.1(d) shall be deemed to have begun as of the
date the Change of Control notice is required to be sent in the event that the
Company has not complied with the provisions of Section 4.21 and the Trustee or
Holders of at least 25% in principal amount of the outstanding Notes thereafter
give the Notice of Default referred to in Section 6.1(d) to the Company and, if
applicable, the Trustee; provided, however, that if the breach or default is a
result of a default in the payment when due of the Repurchase Price on the
Repurchase Date, such Event of Default shall be deemed, for purposes of this
Section 6.1, to arise no later than on the last Repurchase Date.
SECTION 6.2 Acceleration of Maturity Date; Rescission and
Annulment.
(a) If an Event of Default (other than an Event of Default
specified in Section 6.1(g) or 6.1(h) relating to the Company) occurs and is
continuing, then, and in every such case, unless the principal of all of the
Notes shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of then outstanding
Notes, by a notice in writing to the Company (and to the Trustee if given by
such Holders) (an "Acceleration Notice"), may declare all of the principal of
the Notes (or the Repurchase Price if the Event of Default includes failure to
pay the Repurchase Price, determined as set forth below), including in each
case accrued and unpaid interest thereon, Liquidated Damages, if any, and all
other Obligations thereunder, to be due and payable immediately. If an Event of
Default specified in Section 6.1(g) or 6.1(h) relating to the Company occurs,
all principal, accrued and unpaid interest thereon, and Liquidated Damages, if
any, and all other Obligations thereunder will become immediately due and
payable on all outstanding Notes without any other act, declaration or notice
on the part of Trustee or the Holders.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of no less
than a majority in aggregate principal amount of then outstanding Notes, by
written notice to the Trustee, may rescind and annul, on behalf of all Holders,
any such declaration of acceleration if:
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(1) the Company has paid or deposited with the Trustee
Cash sufficient to pay
(A) all overdue interest on, and Liquidated
Damages, if any, with respect to, all Notes,
(B) the principal of (and premium, if any,
applicable to) any Notes which would then be due otherwise
than by such declaration of acceleration, and interest thereon
at the rate borne by the Notes,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest and Liquidated
Damages at the rate borne by the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
(2) all Events of Default, other than the non-payment of
the principal of, premium, interest on and Liquidated Damages, if any,
with respect to Notes that have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section
6.12, including, if applicable, any Event of Default relating to the
covenants contained in Section 4.21.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with
notice or lapse of time or both would be an Event of Default with respect to
any covenant or provision which cannot be modified or amended without the
consent of the Holder of each outstanding Note affected thereby, unless all
such affected Holders agree, in writing, to waive such Event of Default or
other event. No such waiver shall cure or waive any subsequent Default or Event
of Default or impair any right consequent thereon.
(b) In the case of any Event of Default occurring by
reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding payment of the
premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to the optional redemption
provisions of this Indenture, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by law upon
the acceleration of the Notes. If an Event of Default occurs prior to
April 15, 2002, by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Notes prior to such
date, then, upon acceleration of the Notes, and in an amount, for each
of the years beginning on April 15 of the years set forth below:
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YEAR PERCENTAGE
---- ----------
1997 . . . . . . . . . . . . . . . . . . . . . . . 111.250%
1998 . . . . . . . . . . . . . . . . . . . . . . . 110.125%
1999 . . . . . . . . . . . . . . . . . . . . . . . 109.000%
2000 . . . . . . . . . . . . . . . . . . . . . . . 107.875%
2001 . . . . . . . . . . . . . . . . . . . . . . . 106.750%
SECTION 6.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if an Event of Default in payment of
principal, premium, interest or Liquidated Damages specified in clause (a) or
(b) of Section 6.1 occurs and is continuing, the Company shall, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole
amount then due and payable on such Notes for principal, premium, interest,
Liquidated Damages, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium,
if any), Liquidated Damages and on any overdue interest, at the rate borne by
the Notes, and, in addition thereto, such further amount as shall be sufficient
to cover the reasonable costs and expenses of collection, including
compensation to, and reasonable expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the Notes
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, interest or Liquidated Damages) shall be
entitled and empowered, by intervention in such proceeding or otherwise to take
any and all actions under the TIA, including
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(1) to file and prove a claim for the whole amount of
principal (and premium, if any), interest and Liquidated Damages owing
and unpaid in respect of the Notes and to file such 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 of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same
in accordance with Section 6.6;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.7.
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 6.5 Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
SECTION 6.6 Priorities.
Any money collected by the Trustee pursuant to this Article VI shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal,
premium, interest or Liquidated Damages, if any, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
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SECOND: To the holders of Senior Indebtedness of the Company to the
extent provided in Article XII;
THIRD: To the Holders in payment of the amounts then due and unpaid
for principal of, premium, interest on and Liquidated Damages, if any, with
respect to, the Notes in respect or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for principal, premium, interest
and Liquidated Damages, if any, respectively; and
FOURTH: The remainder, if any, shall be repaid to the Company.
SECTION 6.7 Limitation on Suits.
No Holder of any Note shall have any right to institute or order or
direct the Trustee to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(A) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount
of then outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities to be incurred or reasonably
probable to be incurred in compliance with such request;
(D) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(E) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of then outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
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SECTION 6.8 Unconditional Right of Holders to Receive Principal,
Premium, Interest and Liquidated Damages.
Notwithstanding any other provision of this Indenture but subject to
the provisions of Section 6.6 and Article XII, the Holder of any Note shall
have the right, which is absolute and unconditional, to receive payment of the
principal of, and premium, interest on and Liquidated Damages, if any, with
respect to, such Note when due (including, in the case of redemption, the
Redemption Price on the applicable Redemption Date, and in the case of the
Repurchase Price, on the applicable Repurchase Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 6.9 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in Section 2.7, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.10 Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any Note to
exercise any right or remedy arising upon any Event of Default shall impair the
exercise of any such right or remedy or constitute a waiver of any such Event
of Default. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.11 Control by Holders.
The Holder or Holders of no less than a majority in aggregate
principal amount of then outstanding Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred upon the Trustee,
provided, that
(1) the Trustee may refuse to follow any direction that
conflicts with any rule of law or with this Indenture,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction or that may involve the Trustee in personal
liability, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
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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 reasonable direction against any loss, expense or
liability caused by taking such action or following such direction.
SECTION 6.12 Waiver of Past Default.
The Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Notes may, on behalf of all Holders, prior
to the declaration of acceleration of the maturity of the Notes, waive any past
default hereunder and its consequences, except a default
(A) in the payment of the principal of, premium, interest
on, or Liquidated Damages, if any, with respect to, any Note not yet
cured, or
(B) in respect of a covenant or provision hereof which,
under Article IX, cannot be modified or amended without the consent of
the Holder of each outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising therefrom.
In the event of a waiver, the Company shall deliver to the Trustee an
Officer's Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. When a Default
or Event of Default is waived, it is cured and ceases.
SECTION 6.13 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, 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,
suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.13 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in aggregate principal amount
of then outstanding Notes, or to any suit instituted by any Holder for
enforcement of the payment of principal of, premium, interest on or Liquidated
Damages with respect to, any Note on or after the respective Stated Maturity of
such Note (including, in the case of redemption, on or after the Redemption
Date).
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SECTION 6.14 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
SECTION 7.1 Duties of Trustee.
(a) If a Default or an Event of Default actually known to the
Trustee 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 a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no
covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.1.
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(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.11 and the Trustee
shall be entitled from time to time to request and receive such
direction.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or at the request, order or direction of the
Holders or in the exercise of any of its rights or powers unless it receives
reasonable indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section
7.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in any such document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 14.4 and 14.5. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
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(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article IV hereof. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to Sections 6.1(a)
or 6.1(b), or (ii) any Default or Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge.
(i) Subject to Section 9.2 hereof, the Trustee may (but shall not
be obligated to), without the consent of the Holders, give any consent, waiver
or approval required by the terms hereof. The Trustee shall be entitled to
request and conclusively rely on an Opinion of Counsel with respect to whether
any consent, waiver, approval, amendment or modification shall be a material
adverse effect on the interest or rights of any Holder.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any of its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights; however,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes and it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be responsible for any
statement in the Notes, other than the Trustee's certificate of authentication,
or the use or application of any funds received by a Paying Agent other than
the Trustee.
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SECTION 7.5 Notice of Default.
Except in the case of a Default or an Event of Default in payment of
principal, premium, interest or Liquidated Damages, if any, with respect to,
any Note (including the payment of the Repurchase Price on the Repurchase Date
and the payment of the Redemption Price on the Redemption Date), the Trustee
may withhold the notice if and so long as a Trust Officer in good faith
determines that withholding the notice is in the interest of the Noteholders.
SECTION 7.6 Reports by Trustee to Holders.
Within 60 days after each July 15 beginning with the July 15 following
the date of this Indenture, the Trustee shall, if required by TIA Section
313(a), mail to each Noteholder a brief report dated as of such July 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the Notes
become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Noteholders shall
be mailed to the Company and filed with the SEC, if required by law, and each
stock exchange, if any, on which the Notes are listed.
SECTION 7.7 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust). The Company shall also reimburse the Trustee upon request
for all reasonable disbursements, expenses and advances incurred or made by it.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents, accountants, experts and counsel.
The Trustee shall not be under any obligation to institute any suit,
or take any remedial action under this Indenture, or to enter any appearance or
in any way defend any suit in which it may be a defendant, or to take any steps
in the execution of the trusts created hereby or thereby or in the enforcement
of any rights and powers under this Indenture, until it shall be indemnified to
its reasonable satisfaction against any and all reasonable expenses,
disbursements, advances and other liabilities incurred or made by the Trustee
in accordance with any provisions of this Indenture, including compensation for
services, costs, expenses, outlays, counsel fees and other disbursements, and
against all liability not due to its negligence or willful misconduct.
The Company agrees to indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it and each of them harmless against, any claim, demand, expense
(including but not limited to reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel), loss or liability incurred by it
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without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the administration of this trust and its rights or duties
hereunder including the reasonable 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 shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity; however, unless the position of the Company is prejudiced by such
failure, the failure of the Trustee to promptly notify the Company shall not
limit its right to indemnification. The Company shall defend each such claim.
The Trustee may retain separate counsel if the Trustee shall have been
reasonably advised by counsel that there may be one or more legal defenses
available to it that are different from or additional to those available to the
Company and in the reasonable judgment of such counsel it is advisable for the
Trustee to engage separate counsel, and the Company shall reimburse the Trustee
for the reasonable fees and expenses of such counsel. The Company need not pay
for any settlement made without its written consent. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this Section 7.7, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Notes on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust to pay principal of, premium, interest or
Liquidated Damages, if any, on particular Notes pursuant to Article III.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article VIII of this
Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in principal amount of then outstanding Notes
may remove the Trustee by so notifying the Company and the Trustee in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes charge of
the Trustee or its property; or
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(d) the Trustee becomes incapable of acting.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.8.
If the instrument of acceptance by a successor Trustee required by
this Section 7.8 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the removed Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. At any time within one year after a successor Trustee
appointed by the Company takes office, the Holder or Holders of a majority in
principal amount of then outstanding Notes may, with the Company's consent,
appoint a successor Trustee to replace such successor Trustee as so appointed
by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the retiring Trustee provided for in
Section 7.7 have been paid, the retiring Trustee shall transfer all property
held by it as trustee to the successor Trustee, subject to the lien provided in
Section 7.7, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the Company or any Holder or Holders of
at least 10% in principal amount of then outstanding Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder or
Holders of at least 10% in principal amount of then outstanding Notes may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Any successor Trustee shall comply with
TIA Section 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
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otherwise eligible hereunder, be the successor Trustee, provided such
corporation shall be otherwise eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and delivery the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
SECTION 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus
of at least $50,000,000 (or being a member or subsidiary of a bank holding
system with aggregate combined capital and surplus of at least $50,000,000) as
set forth in its most recent published annual report of condition if such
corporation or system publishes reports of condition at least annually,
pursuant to law or to the requirements of such supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation or system shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Trustee shall comply with 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 securities, or certificates of
interest or participation in other securities of the Company are outstanding if
the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
The provisions of TIA Section 310 shall apply to the Company, as obligor of the
Notes.
SECTION 7.11 Preferential Collection of Claims Against Company.
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.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article VIII.
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SECTION 8.2 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, 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 the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by
the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.5 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
Section 8.4 hereof, and as more fully set forth in such Section, payments in
respect of the principal, premium, interest and Liquidated Damages, if any, on
such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article II and Section 4.2 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (d) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its
option under this Section 8.2 notwithstanding the prior exercise of its option
under Section 8.3 hereof.
SECTION 8.3 Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be released from its
obligations under the covenants contained in Sections 4.4, 4.5, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20 and 4.21 hereof with respect to
the outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance") and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
hereof of the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(c)
through 6.1(g) hereof shall not constitute Events of Default.
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SECTION 8.4 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent certified public
accountants, to pay the principal, premium, interest and Liquidated
Damages, if any, on the outstanding Notes on the Stated Maturity
thereof or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
from nationally recognized tax counsel reasonably acceptable to the
Trustee confirming that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
from nationally recognized tax counsel reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or insofar as Events of
Default from bankruptcy or insolvency events 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,
any material agreement or instrument (other
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than this Indenture) to which the Company or any of its Restricted
Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
opinion of counsel to the effect that on the 91st day or on the day
after the last day of the applicable preference period under
Bankruptcy Law following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
(i) the deposit shall not result in the Company, the
Trustee or the trust becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended.
SECTION 8.5 Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.4 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or
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non-callable Government Securities held by it as provided in Section 8.4 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.4(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.6 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Note;
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may be; provided, however, that, if the Company makes any payment
of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
SECTION 8.8 Discharge of Liability on Securities; Defeasance.
When (a)(i) the Company delivers to the Trustee all outstanding Notes
for cancellation or (ii) all outstanding Notes have become due and payable,
whether at maturity or on a specified redemption date as a result of the
mailing of a notice of redemption pursuant to Article III hereof, (b) the
Company irrevocably deposits with the Trustee money sufficient to pay at
maturity or upon redemption all outstanding Notes, including interest and
premium thereon
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to maturity or such redemption date, and if in either case the Company pays all
other sums payable hereunder by the Company, and (c) if the Notes have been
called for redemption and the redemption date has not occurred, the Company
delivers to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such actions and will be subject to federal income tax on the same
amounts, in the same manner and at the same time as would have been the case if
such actions had not occurred, then this Indenture shall cease to be of further
effect except for (i) the provisions set forth in Article II, Section 4.7, 7.7
and 8.6 hereof and (ii) if the Notes have been called for redemption and the
redemption date has not occurred, the Company's obligation to pay the
redemption price on such redemption date. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officer's Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Notes without the consent of any Holder of Notes:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(iii) to provide for the assumption of the Company's
Obligations to Holders in the case of a merger or consolidation;
(iv) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the
Notes; or
(v) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company, accompanied by a resolution of the
Board of Directors of the Company, authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof required or requested by the Trustee,
the Trustee shall join with the Company in the execution of any
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supplemental indenture or amendment authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into such supplemental indenture or amendment which affects its own rights,
duties or immunities under this Indenture or otherwise.
SECTION 9.2 With Consent of Holders.
Except as otherwise provided herein, the Company and the Trustee may
amend or supplement this Indenture or the Notes with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or
exchange offer for the Notes).
Upon the request of the Company, accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such
supplemental indenture or amendment, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.6 hereof, the Trustee shall join with the Company in the execution of
such supplemental indenture or amendment unless such supplemental indenture or
amendment affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture
or amendment, but it shall be sufficient if such consent approves the substance
thereof.
After a supplemental indenture or amendment under this Section becomes
effective, the Company shall mail to the Holders of each Note affected thereby
a notice briefly describing the amendment or waiver. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture, amendment or
waiver. Subject to Sections 6.8, 6.12, 7.2 and 7.7 hereof, the Holders of a
majority in principal amount of the Notes then outstanding may waive compliance
in a particular instance by the Company with any provision of this Indenture or
the Notes. However, without the consent of each Holder of Notes affected, an
amendment or waiver under this Section may not (with respect to any Notes held
by a non-consenting Holder of Notes):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity
of any Note or alter the optional or mandatory redemption provisions
(other than provisions relating to the covenants described in Section
4.20 or 4.21) or reduce the prices at which the Company shall offer to
purchase such Notes pursuant to Sections 4.20 or 4.21 hereof;
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(c) reduce the rate of or change the time for payment of
interest or Liquidated Damages, if any, including default interest, on
any Note;
(d) waive a Default or Event of Default in the payment of
principal of or interest or Liquidated Damages, if any, on, or
redemption payment with respect to, any Note (other than a Default in
the payment of an amount due as a result of an acceleration if the
Holders of Notes rescind such acceleration pursuant to Section 6.2);
(e) make any Note payable in money other than that stated
in the Note;
(f) make any change in the provisions of this Indenture
relating to waiver of past defaults or to the rights of Holders to
receive payments of principal, premiums, interest or Liquidated
Damages, if any, on the Notes or in this sentence of this Section 9.2;
(g) waive a redemption payment with respect to any Note;
(h) make any change to the subordination provisions of
Article XII of this Indenture that adversely affects Holders of Notes;
or
(i) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.3 Compliance with TIA.
If at the time of an amendment to this Indenture or the Notes, this
Indenture shall be qualified under the TIA, every amendment to this Indenture
or the Notes shall be set forth in a supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation of
the consent is not made on any Note. Subject to the following paragraph, any
such Holder or subsequent Holder may revoke the consent as to such Holder's
Note or portion of such Note by notice to the Trustee or the Company received
before the date specified in any solicitation or waiver. Subject to Section 9.2
hereof, a supplemental indenture, amendment or waiver becomes effective in
accordance with its terms and thereafter binds every Holder of Notes.
The Company may fix a record date for determining which Holders must
consent to such supplemental indenture, amendment or waiver or action permitted
by Section 9.2. If the Company fixes a record date, the record date shall be
fixed at the later of (i) 30 days prior to the
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first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section
2.5, or (ii) such other date as the Company shall designate.
SECTION 9.5 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about a supplemental
indenture, amendment or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment or waiver.
SECTION 9.6 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article IX if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment or supplemental indenture, the Trustee shall be entitled to
receive, if requested, an indemnity reasonably satisfactory to it and to
receive and, subject to Section 7.1, shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith or therewith, and that it will
be valid and binding upon the Company in accordance with its terms. The
Company may not sign an amendment or supplemental indenture until the Board of
Directors of the Company approves it.
ARTICLE X
[RESERVED]
ARTICLE XI
[RESERVED]
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ARTICLE XII
SUBORDINATION
SECTION 12.1 Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by, and the payment of principal, premium, interest
and Liquidated Damages, if any, on, the Notes is subordinated in right of
payment, to the extent and in the manner provided in this Article XII, to the
prior payment in full of all Senior Indebtedness (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Indebtedness.
SECTION 12.2 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities, in each such case whether voluntary or involuntary,
domestic or foreign:
(a) the holders of Senior Indebtedness shall be entitled
to receive payment in full in cash or Cash Equivalents of all
Obligations due in respect of such Senior Indebtedness (including
interest after the commencement of any such proceeding in accordance
with the terms of the applicable Senior Indebtedness before Holders
shall be entitled to receive any payment of principal, premium,
interest or Liquidated Damages, if any, on the Notes; and
(b) until all Obligations with respect to Senior
Indebtedness are paid in full in cash or Cash Equivalents, any such
distribution to which Holders would be entitled shall be made to the
holders of such Senior Indebtedness;
provided that notwithstanding the foregoing, Holders may receive: (i) Capital
Stock (other than Disqualified Stock); (ii) securities that are subordinated at
least to the same extent as the Notes, to Senior Indebtedness of the Company
and to any securities issued in exchange for such Senior Indebtedness; and
(iii) payments made from the trust described in Article VIII hereof.
SECTION 12.3 Default on Designated Senior Debt.
The Company also may not make any payment of principal, premium,
interest and Liquidated Damages, if any, on the Notes upon or in respect of the
Notes whether on account of principal, interest, premiums, Liquidated Damages
or otherwise (other than as set forth in Section 12.2(b) hereof) if: (i) a
default in the payment of the principal, premium, if any, or
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interest on any Designated Senior Indebtedness occurs and is continuing beyond
any applicable period of grace; or (ii) any other default occurs and is
continuing with respect to Designated Senior Indebtedness or would occur as a
consequence of such payment that permits holders of the Designated Senior
Indebtedness as to which such default relates to accelerate its maturity and
the Trustee receives a written notice of such default (a "Payment Blockage
Notice") from the holders of any such Designated Senior Indebtedness.
The Company may and shall resume payment on the Notes: (1) in the case
of a payment default, upon the date on which such Default is cured or waived or
otherwise has ceased to exist, and (2) in the case of a non-payment default,
the earlier of the date on which such other Default is cured or waived or
otherwise has ceased to exist or 179 days after the date on which the
applicable Payment Blockage Notice is received, unless, in the case of either
clause (1) or (2), the maturity of any Designated Senior Indebtedness has been
accelerated, and such acceleration remains in full force and effect. No new
period of payment blockage may be commenced within 360 days after the receipt
by the Trustee of any prior Payment Blockage Notice. No non-payment default
that existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice. Following the expiration of any period during which the
Company is prohibited from making payments on the Notes pursuant to a Payment
Blockage Notice, the Company will be obligated to resume making any and all
required payments in respect of the Notes, including without limitation any
missed payments, unless the maturity of any Designated Senior Indebtedness has
been accelerated, and such acceleration remains in full force and effect.
The Company shall give prompt written notice to the Trustee of any
default in the payment of any Senior Indebtedness or any acceleration under any
Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued. Failure to give such notice shall not affect
the subordination of the Notes to the Senior Indebtedness or the application of
the other provisions provided in this Article XII.
SECTION 12.4 Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
SECTION 12.5 When Distribution Must be Paid Over.
In the event that the Trustee receives or is holding, or any Holder
receives, any payment of any principal, premium, interest and Liquidated
Damages, if any, with respect to the Notes at a time when the Trustee or such
Holder, as applicable, has actual knowledge (in the case of the Trustee as
described in Section 12.11 hereof), that such payment is prohibited by Section
12.2 or 12.3 hereof, such payment shall be held by the Trustee or such Holder,
in trust for the benefit of, and shall be paid forthwith over and delivered to,
the holders of Senior Indebtedness as their interests may appear or their
Representative under the indenture or other agreement (if any)
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pursuant to which Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to the Senior Indebtedness remaining unpaid to the extent necessary to
pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness 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 Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
SECTION 12.6 Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article XII, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt as
provided in this Article XII.
SECTION 12.7 Subrogation.
After all Senior Indebtedness is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Indebtedness. A distribution made under this Article to
holders of Senior Indebtedness that otherwise would have been made to Holders
is not, as between the Company and Holders, a payment by the Company on the
Notes.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article XII shall have been
applied, pursuant to the provisions of this Article XII, to the payment of all
amounts payable under the Senior Indebtedness, then and in such case the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of such Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Indebtedness in
full; provided that such payments or distributions shall be paid first pro rata
to Holders that previously paid amounts then pro rata to all Holders.
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SECTION 12.8 Relative Rights.
This Article XII defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal, premium,
interest and Liquidated Damages, if any, on the Notes in accordance with their
terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Indebtedness;
or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or an Event of Default, subject to the rights
of holders and owners of Senior Indebtedness to receive distributions and
payments otherwise payable to Holders.
If the Company fails because of this Article XII to pay principal,
premium, interest and Liquidated Damages, if any, on a Note on the due date,
the failure is still a Default or an Event of Default.
SECTION 12.9 Subordination May Not be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
SECTION 12.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article XII, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII.
SECTION 12.11 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article XII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that
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would prohibit the making of any payment or distribution by the Trustee, and
the Trustee and the Paying Agent may continue to make payments on the Notes,
unless an authorized Officer of the Trustee shall have received at its office
at least two Business Days prior to the due date of such payment written notice
of facts that would cause the payment of any principal, premium, interest and
Liquidated Damages, if any, with respect to the Notes to violate this Article
XII. Only the Company or a Representative may give the notice. Nothing in this
Article XII shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 12.12 Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article XII, and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.4 hereof at least 30 days before the expiration of the time to file
such claim, a Representative of Designated Senior Indebtedness is hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes and the Trustee shall have no liability therefor.
SECTION 12.13 Payment.
A payment with respect to a Note or with respect to principal of or
interest on a Note shall include, without limitation, payment of principal,
premium, interest and Liquidated Damages, if any, on any Note, any payment on
account of any mandatory or optional repurchase or redemption of any Note
(including payments pursuant to Article III or Section 4.20 or Section 4.21
hereof) and any payment or recovery on any claim (whether for rescission or
damages and whether based on contract, tort, duty imposed by law, or any other
theory of liability) relating to or arising out of the offer, sale or purchase
of any Note provided that any such payment, other payment or recovery (i) not
prohibited pursuant to this Article XII at the time actually made shall not be
subject to any recovery by any holder of Senior Indebtedness or Representative
therefor or other Person pursuant to this Article XII at any time thereafter
(unless such payment is a voluntary prepayment on the Notes made at the time a
Default exists under this Indenture) and (ii) made by or from any Person other
than the Company shall not be subject to any recovery by any holder of Senior
Indebtedness or Representative therefor or other Person pursuant to this
Article XII at any time thereafter except to the extent such Person recovers
any such amount paid from the Company, whether pursuant to rights of indemnity,
rescission or otherwise.
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ARTICLE XIII
[RESERVED]
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, whether or
not this Indenture has been qualified under the TIA, shall control.
SECTION 14.2 Notices.
Any notices or other communications to the Company or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telex, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company:
MMI Products, Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
if to the Trustee:
U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Corporate Trust Division
Telecopy: (000) 000-0000
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with a copy to:
Xxxxx & Xxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when answered back, if telexed;
when receipt is acknowledged, if telecopied; and five Business Days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 14.3 Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION 14.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) An Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been fully complied with; and
(2) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been fully complied with.
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SECTION 14.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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 fully complied with; and
(4) a statement as to whether or not, in the opinion of
each such Person, such condition or covenant has been fully 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.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters and information which is in the
possession of the Company, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
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SECTION 14.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 14.7 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 14.8 Governing Law.
THIS INDENTURE AND THE Notes SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK.
SECTION 14.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 14.10 No Recourse Against Others.
No direct or indirect partner, employee, stockholder, director or
officer, as such, past, present or future of the Company or any successor
corporation, shall have any personal liability in respect of the obligations of
the Company under the Notes or this Indenture by reason of his, her or its
status as such partner, stockholder, employee, director or officer. Each
Noteholder by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the Notes.
SECTION 14.11 Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 14.12 Duplicate Originals.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
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SECTION 14.13 Severability.
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 14.14 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 14.15 Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall
pay all costs and expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Notes and printing this
Indenture and the Notes. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 14.16 Registration Rights.
Certain Holders of the Notes are entitled to certain registration
rights with respect to such Notes pursuant to, and subject to the terms of, the
Registration Rights Agreement.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
MMI PRODUCTS, INC., a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------
Title: President and Chief Executive
-----------------------------------
Officer
-----------------------------------
U.S. TRUST COMPANY OF TEXAS, N.A., as Trustee
By: /s/ XXXX XXXXXX
--------------------------------
Name: Xxxx Xxxxxx
---------------------------
Title: Vice President
--------------------------
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EXHIBIT A
FORM OF NOTE
(FACE OF NOTE)
MMI PRODUCTS, INC.
11 1/4% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTE
DUE 2007
No. CUSIP No. ____________
$ _______
MMI Products, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _____, or
registered assigns, the principal sum of ________________________, on April 15,
2007.
Interest Payment Dates: April 15 and October 15, commencing October
15, 1997.
Record Dates: April 1 and October 1.
Reference is made to the further provisions of this Note on the
reverse side, which will, for all purposes, have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
MMI Products, Inc., a Delaware corporation
[Seal]
By:
-------------------------------
Name:
Title:
Attest:
---------------------------
Secretary
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FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
U.S. Trust Company of Texas, N.A., as Trustee
By
--------------------------------------
Authorized Signatory
Dated:
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MMI PRODUCTS, INC.
(BACK OF NOTE)
11 1/4% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTE
DUE 2007
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS 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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX
XXX XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
-------------------
1. This paragraph should only be added if the Note is issued in global form.
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SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
NON-UNITED STATES PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2)
TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.2
1. Interest.
MMI Products, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Note at
the rate of 11.25% per annum. To the extent it is lawful, the Company promises
to pay interest on any interest payment due but unpaid at a rate of 11.25% per
annum.
The Company will pay interest semi-annually on April 15 and October 15
of each year (each, an "Interest Payment Date"), commencing October 15, 1997.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been
--------------------
2. This paragraph should be included only for the Transfer Restricted Notes.
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paid on the Notes, from April 16, 1997. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
Any such interest not so punctually paid, and defaulted interest relating
thereto, may be paid to the Persons who are registered Holders at the close of
business on a Special Record Date for the payment of such defaulted interest,
as more fully provided in the Indenture referred to below. Except as provided
below, the Company shall pay principal and interest in such coin or currency of
the United States of America as at the time of payment shall be legal tender
for payment of public and private debts ("U.S. Legal Tender"). The Notes will
be payable as to principal, premium, interest and Liquidated Damages at the
office or agency of the Company maintained for such purpose within the Borough
of Manhattan, The City and State of New York, or at the option of the Company,
payment of principal, premium, interest and Liquidated Damages may be made by
check mailed to the Holders at their addresses set forth in the registry of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of, premium and interest on
and Liquidated Damages with respect to Global Notes.
3. Paying Agent and Registrar.
Initially, U.S. Trust Company of Texas, N.A. (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of April 16,
1997 (the "Indenture"), between the Company and the Trustee. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act, as in effect on
the date of the Indenture. The Notes are subject to all such terms, and Holders
of Notes are referred to the Indenture and said Act for a statement of them.
The Notes are general unsecured obligations of the Company limited in aggregate
principal amount to $200,000,000, and may be issued in one or more series.
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0. Redemption.
The Notes may not be redeemed prior to April 15, 2002. On or after
April 15, 2002, the Notes may be redeemed in whole or from time to time in part
at any time, at the option of the Company, at the Redemption Price (expressed
as a percentage of principal amount) set forth below with respect to the
indicated Redemption Date, in each case, plus any accrued but unpaid interest
and Liquidated Damages to, but excluding, the Redemption Date.
If redeemed during
the 12-month period
beginning Redemption Price
------------------- ----------------
2002 . . . . . . . . . . . . . . . . . . 105.625%
2003 . . . . . . . . . . . . . . . . . . 103.750%
2004 . . . . . . . . . . . . . . . . . . 101.875%
2005 and thereafter . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, on or prior to April 15, 2000, the
Company may redeem at any time or from time to time up to 35% of the aggregate
principal amount of the Notes (including, for this purpose, one or more series
of Notes issued under the Indenture) issued, at a redemption price of 111.25%
of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date, with the net
proceeds of one or more Public Equity Offerings; provided, that at least
$78,000,000 in aggregate principal amount of the Notes remain outstanding
following each such redemption; and provided, further, that notice of such
redemption shall be given not later than 30 days and such redemption shall
occur not later than 60 days, after the date of the closing of any such Public
Equity Offering.
6. Notice of Redemption.
Notice of redemption will be sent by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the Redemption
Date to the Holder of each Note to be redeemed at such Holder's last address as
then shown upon the registry books of the Registrar. Notes may be redeemed in
part in multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Notes called for redemption shall
have been deposited with the Paying Agent on such Redemption Date and payment
of the Notes called for redemption is not prohibited under Article XII of the
Indenture, the Notes called for redemption will cease to bear interest and the
only right of the Holders of such Notes will be to receive payment of the
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Redemption Price, plus any accrued and unpaid interest and Liquidated Damages,
if any, to the Redemption Date.
7. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer
of, or exchange 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 any taxes and fees required by law or permitted
by the Indenture. The Registrar need not register the transfer of or exchange
any Notes selected for redemption.
8. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of it for
all purposes.
9. Unclaimed Money.
If money for the payment of principal, interest or Liquidated Damages
remains unclaimed for two years, the Trustee and the Paying Agent(s) will pay
the money back to the Company at its written request. After that, all liability
of the Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented, and any existing Default or Event of Default or
compliance with any provision may be waived, with the written 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 or the Notes to, among other things, cure
any ambiguity, defect or inconsistency, or make any other change that does not
adversely affect the rights of any Holder of a Note.
11. Ranking.
Payment of principal, premium, interest and Liquidated Damages, if
any, with respect to the Notes is subordinated, in the manner and to the extent
set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness.
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000
00. Change of Control.
In the event of a Change of Control of the Company, each Holder of
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes, at an
offer price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Change of Control Payment Date.
13. Asset Sales.
In the event of certain Asset Sales, the Company may be required to
make an Asset Sale Offer to purchase the maximum principal amount of Notes that
may be purchased out of Excess Proceeds, at an offer price in cash equal to
100% of the principal amount of the Notes, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase.
14. Successors.
When a successor assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor will be released from those
obligations.
15. Restrictive Covenants.
The Indenture imposes certain limitations on, among other things, the
ability of the Company to consolidate or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets, the ability of the Company or its Restricted Subsidiaries
to dispose of certain assets, to declare or pay dividends or make certain other
distributions and payments, to make certain investments or purchase, redeem, or
otherwise acquire or retire for value Equity Interests, to incur additional
Indebtedness or incur Liens and to enter into certain transactions with
Affiliates, all subject to certain limitations described in the Indenture.
16. Defeasance.
The Indenture contains provisions that permit the Company to defease
the Notes (and satisfy generally its Obligations under the Indenture or with
respect to certain covenants contained therein) under certain circumstances
subject to the conditions specified therein.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then either the Trustee or the Holders of 25% in aggregate
principal amount of Notes then outstanding may declare all the Notes to be due
and payable immediately; provided, however, that after such acceleration, but
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before a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than non-payment of accelerated principal, have been cured or waived as
provided in the Indenture. Holders of Notes may not enforce the Indenture or
the Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes notice of any continuing Default or
Event of Default (except a Default in payment of principal, interest or
Liquidated Damages), 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 make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer or employee, as such, past, present
or future, of the Company or any successor corporation shall have any personal
liability in respect of the obligations of the Company under the Notes or the
Indenture by reason of his, her or its status as such stockholder, director,
officer or employee. 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 the other side of 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
Note Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Notes
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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. Additional Rights of Holders of Transfer Restricted Notes.
In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Request may be made to:
MMI Products, Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
24. Governing Law.
This Note and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed entirely within the State of New York, without regard to
principles of conflicts of law.
25. Agreement to Terms.
Each Holder, by accepting a Note, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.
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FORM OF ASSIGNMENT
I or we assign this Note to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Note or other identifying number of assignee
-------------------------
and irrevocably appoint ______________________ agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Dated: Signed:
-------------------- ------------------------------------------
--------------------------------------------------------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:
-------------------------------
NOTICE: Your Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program; (ii) The New York Stock Exchange
Medallion Program; (iii) The Stock Exchange Medallion Program; or (iv) any
other guarantee program acceptable to the Trustee.
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.20 or Section 4.21 of the Indenture, check the
appropriate box:
Section 4.20 { } Section 4.21 { }
If you want to have only part of this Note purchased by the Company
pursuant to Section 4.20 or Section 4.21 of the Indenture, state the amount (in
integral multiples of $1,000):
$
----------------
Date:
------------------------------
Signature:
-------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
--------------------------
NOTICE: Your Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program; (ii) The New York Stock Exchange
Medallion Program; (iii) The Stock Exchange Medallion Program; or (iv) any
other guarantee program acceptable to the Trustee.
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES3
The following exchanges of a part of this Global Note for
Definitive Notes have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized officer of
Principal Amount Principal Amount of Note following Trustee or
Date of of this Global this Global such decrease (or Notes
Exchange Note Note increase) Custodian
-----------------------------------------------------------------------------------------
----------------------------------
3. This schedule should only be added if the Note is issued in global form.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 11 1/4% SERIES A SENIOR SUBORDINATED NOTES DUE 2007 OF MMI PRODUCTS, INC.
This Certificate relates to $______ principal amount of Notes held in (*)
_____ book-entry or (*) ______ definitive form by _____ (the "Transferor").
1. The Transferor:*
[ ] (a) has requested the Registrar by written order to exchange or
register the transfer of a Note or Notes; or
[ ] (b) has requested the Trustee by written order to exchange its
Note or Notes beneficial interest in the Global Note held by the Depositary a
Note or Notes in definitive, registered form for a beneficial interest in a
Global Note held by the Depositary equal to the principal amount of Notes it
holds (or the portion thereof indicated above).
[ ] (c) has requested the Trustee by written order to deliver in
exchange for its beneficial interest in a Global Note held by the Depositary a
Note or Notes in definitive, registered form equal to its beneficial interest
in such Global Note (or the portion thereof indicated above).
2. In connection with such request and in respect of each such
Note, the Transferor does hereby certify that Transferor is familiar with the
Indenture relative to the above-captioned Notes and that the transfer of this
Note does not require registration under the Securities Act (as defined below)
because:*
[ ] (a) Such Note is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.6(b)(ii)(A) or Section
2.6(d)(i)(A) of the Indenture).
[ ] (b) Such Note is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")), in a transaction meeting the requirement of Rule 144A
under the Securities Act.
--------------------
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* Check applicable box.
[ ] (c) Such Note is being transferred outside the U.S. to a foreign
person pursuant to an exemption from registration in a transaction meeting the
requirements of Regulation S under the Securities Act.
[ ] (d) Such Note is being transferred to an institutional investor
that is an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3)
or (7) under the Securities Act pursuant to a private placement exemption from
the registration requirements of the Securities Act (based on a certification
delivered pursuant to the Indenture).
[ ] (e) Such Note is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] (f) Such Note is being transferred in a transaction meeting the
requirements of Rule 144 under the Securities Act.
[ ] (g) Such Note is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act. An Opinion of Counsel, if so requested by the Company or the
Trustee, to the effect that such transfer is in compliance with the Securities
Act accompanies this Certificate.
-----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
--------------------------------
Date:
-----------------------------
X-00
000
0. Affiliation with the Company (check if applicable)
[ ] (a) The undersigned represents and warrants that it is,
or at some time during which it held this Note was,
an Affiliate of the Company.
(b) If 3(a) above is checked and if the undersigned was
not an Affiliate of the Company at all times during
which it held this Note, indicate the periods during
which the undersigned was an Affiliate of the
Company: ________________________________.
(c) If 3(a) above is checked and if the Transferee will
not pay the full purchase price for the transfer of
this Note on or prior to the date of transfer
indicate when such purchase price will be paid:
________________________________.
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TO BE COMPLETED BY TRANSFEREE IF 2(b) ABOVE IS CHECKED AND THE TRANSFEROR IS
NOT A QUALIFIED INSTITUTIONAL BUYER:
The undersigned represents and warrants that it is a
"qualified institutional buyer" as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and it is aware that the
transferor is relying upon the undersigned's foregoing representation in order
to claim the exemption from registration provided by Rule 144A.
Dated:
--------------- ------------------------------
NOTICE: To be executed
by an officer.
TO BE COMPLETED BY TRANSFEREE IF 2(c) ABOVE IS CHECKED:
The undersigned represents and warrants that it is not a "U.S.
Person" (as defined in Regulation S under the Securities Act of 1933).
Dated:
--------------- ------------------------------
NOTICE: To be executed
by an officer.
If none of the boxes under Section 2 of this certificate is checked or if any
of the above representations required to be made by the Transferee is not made,
the Registrar shall not be obligated to register this Note in the name of any
person other than the Holder hereof.
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM 3(a) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS NOTE AN AFFILIATE, AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE COMPANY.
Dated:
--------------- ------------------------------
NOTICE: The signature of the
Holder to this assignment must
correspond with the name as
written upon the face of this
Note particular, without
alteration or enlargement or
any change whatsoever.
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EXHIBIT B
FORM OF LETTER TO BE DELIVERED
BY ACCREDITED INSTITUTIONS
U.S. Trust Company of Texas, N.A.
ATTN: _____________________
We are delivering this letter in connection with the proposed sale to
U.S. of the % Senior Subordinated Notes due 2007 (the "Notes") of MMI Products
Inc., a Delaware corporation (the "Company").
We hereby confirm that:
(i) we are in an institution that is an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the "Securities Act"), or an
institution in which all of the equity owners are accredited investors
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act (an "Institutional Accredited Investor");
(ii) any purchase of Notes by us will be for our own account or
for the account of one or more other Institutional Accredited
Investors;
(iii) in the event that we purchase any Notes by us will be
for our own account or for the account of one or more other
Institutional Accredited Investors;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing Notes, and we and each separate account for which we are
acting is able to bear the economic risks of its or their investment;
(v) we are not acquiring Notes with a view to any distribution
thereof in a transaction that would violate the Securities Act or the
securities laws of any State of the United States or any other
applicable jurisdiction; provided that the disposition of our property
and the property of any accounts for which we are acting as fiduciary
shall remain at all times within our control; and
(vi) we acknowledge that we have had access to such financial
and other information, and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers
thereto, as we deem necessary in connection with our decision to
purchase Notes.
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We understand that the Notes are being offered in a transaction not
involving any public offering within the meaning of the Securities Act and that
the Notes have not been registered under the Securities Act, and we agree, on
our own behalf and on behalf of each account for which we acquire any Notes,
that such Notes may be offered, resold, pledged or otherwise transferred only
(i) to a person whom we reasonably believe to be a qualified institutional
buyer (as defined in Rule 144A under the Securities Act) in a transaction
meeting the requirements of Rule 144A, in a transaction meeting the
requirements of Rule 144 under the Securities Act, outside the United States in
a transaction meeting the requirements of Rule 904 under the Securities Act, or
in accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel, if the Company so
requests), (ii) to the Company or (iii) pursuant to an effective registration
statement, and, in each case, in accordance with any applicable securities laws
of any State of the United States or any other applicable jurisdiction. We
understand that the registrar will not be required to accept for registration
of transfer any Notes, except upon presentation of evidence satisfactory to the
Company that the foregoing restrictions on transfer have been complied with.
We acknowledge that you and the Company will rely upon our
confirmation, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
-------------------------------
(Name of Purchaser)
By:
----------------------------
Name:
Title:
Address:
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EXHIBIT C
GUARANTEE
For value received, the undersigned hereby unconditionally guarantees
to the Holders of Notes the payments of principal of, premium, if any, and
interest on such Notes in the amounts and at the time when due and interest on
the overdue principal, premium, if any, and interest, if any, of such Notes, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Notes, to the Holders of the Notes and the Trustee,
all in accordance with and subject to the terms and limitations of the Notes,
Article X of the Indenture and this Guarantee. This Guarantee will become
effective in accordance with Article X of the Indenture and its terms shall be
evidenced therein. The validity and enforceability of any Guarantee shall not
be affected by the fact that it is not affixed to any particular Note.
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article X of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates. The Indebtedness evidenced by this
Guarantee is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full in
cash or Cash Equivalents of all Guarantor Senior Indebtedness as defined in the
Indenture, and this Guarantee is issued subject to such provisions. Each Holder
of a Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder,
to take such action as may be necessary to appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that such
subordination provisions shall cease to affect amounts deposited in accordance
with the defeasance provisions of the Indenture upon the terms and conditions
set forth therein.
This Guarantee is subject to release upon the terms set forth in the Indenture.
[NAME OF GUARANTOR]
By:
---------------------------------------------
Name:
Title:
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EXHIBIT D
ARTICLE X
GUARANTEE OF NOTES
SECTION 10.1 Subsidiary Guarantee.
Subject to Section 10.06 hereof, the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes
and the Obligations of the Company hereunder and thereunder, that: (a) the
principal of and premium, interest and Liquidated Damages, if any, on the Notes
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal, premium, (to the extent permitted by law) interest and
Liquidated Damages, if any, on the Notes, and all other payment Obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full and performed, all in accordance with the terms hereof
and thereof; and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other Obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for whatever reason the
Guarantors will be jointly and severally obligated to pay the same immediately.
An Event of Default under this Indenture or the Notes shall constitute an event
of default under the Subsidiary Guarantees, and shall entitle the Holders to
accelerate, the Obligations of the Guarantors hereunder in the same manner and
to the same extent as the Obligations of the Company. The Guarantors hereby
agree that their Obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a preceding first against the Company,
protest, notice and all demands whatsoever and covenants that this Subsidiary
Guarantee will not be discharged except by complete performance of the
Obligations contained in the Notes and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the
Guarantors, or any Note Custodian, Trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by the Company or any Guarantor to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Guarantor agrees that it shall not be entitled
to, and hereby waives, any right of
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subrogation in relation to the Holders in respect of any Obligations guaranteed
hereby. Each Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (a) the maturity
of the Obligations guaranteed hereby may be accelerated as provided in Article
VI hereof for the purposes of its Subsidiary Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the Obligations guaranteed thereby, and (b) in the event of any declaration
of acceleration of such Obligations as provided in Article VI hereof, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purpose of its Subsidiary Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantees.
SECTION 10.2 Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form of Exhibit D to the Indenture shall be endorsed by
manual or facsimile signature by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor, by manual or facsimile signature, by an
Officer of such Guarantor.
After the date of this Indenture, if the Company or any or its
Restricted Subsidiaries shall acquire or create a Restricted Subsidiary, or
redesignate an Unrestricted Subsidiary to be a Restricted Subsidiary, then the
Company shall cause such Restricted Subsidiary to execute a Subsidiary
Guarantee substantially in the form of Exhibit D. Such Subsidiary Guarantee
shall be accompanied by an appropriate supplemental Indenture, along with such
other opinions, certificates and documents required under this Indenture;
provided, however, that any Subsidiary that has been properly designated as an
Unrestricted Subsidiary in accordance with this Indenture need not execute a
Subsidiary Guarantee for so long as it continues to constitute an Unrestricted
Subsidiary.
Each Guarantor hereby agrees that its Subsidiary Guarantee shall remain
in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Senior Note on which a Subsidiary Guarantee is endorsed, the Subsidiary
Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
set forth in this Indenture on behalf of the Guarantors.
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SECTION 10.3 Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture shall prohibit a merger between a Guarantor and
another Guarantor or a merger between a Guarantor and the Company.
(b) No Guarantor shall consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another corporation,
Person or entity whether or not affiliated with such Guarantor unless, other
than with respect to a merger between a Guarantor and another Guarantor or a
merger between a Guarantor and the Company, (i) subject to the provisions of
Section 10.04 hereof, the Person formed by or surviving any such consolidation
or merger (if other than such Guarantor) assumes all the obligations of such
Guarantor pursuant to a supplemental indenture under the Notes and this
Indenture; (ii) immediately after giving effect to such transaction, no Default
or Event of Default exists; (iii) the Company would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Consolidated Interest
Coverage Ratio test set forth in the first paragraph of Section 4.11 hereof.
(c) In the case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor; provided
that, solely for purposes of computing Consolidated Cash Flow and the Fixed
Charge Coverage Ratio for purposes of Section 4.11 hereof, the Consolidated
Cash Flow of any Person other than the Company and its Restricted Subsidiaries
shall only be included for periods subsequent to the effective time of such
merger, consolidation, combination or transfer of assets. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All of the
Subsidiary Guarantees so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Subsidiary Guarantees had been issued at the date of the execution
hereof.
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SECTION 10.4 Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the assets of any
Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the capital stock of any Guarantor, then such
Guarantor (in the event of a sale or other disposition, by way of such a
merger, consolidation or otherwise, of all of the capital stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale or
other disposition of all of the assets of such Guarantor) shall be released and
relieved of any obligations under its Subsidiary Guarantee; provided that (i)
in the event of an Asset Sale, the Net Proceeds from such sale or other
dispositions are treated in accordance with the provisions of Section 4.12
hereof and (ii) the Company is in compliance with all other provisions of this
Indenture applicable to such disposition. Upon delivery by the Company to the
Trustee of an Officers' Certificate to the effect of the foregoing, the Trustee
shall execute any documents reasonably required in order to evidence the
release of any Guarantor from its Obligation under its Subsidiary Guarantee.
Any Guarantor not released from its Obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of and premium, interest
and Liquidated Damages, if any, on the Notes and for the other Obligations of
such Guarantor under this Indenture as provided in this Article X.
SECTION 10.5 Releases Following Designation as an Unrestricted
Subsidiary.
In the event that the Company designates a Guarantor to be an
Unrestricted Subsidiary, then such Guarantor shall be released and relieved of
any obligations under its Subsidiary Guarantee; provided that such designation
is conducted in accordance with this Indenture.
SECTION 10.6 Limitation on Guarantor Liability.
For purposes hereof, each Guarantor's liability shall be limited to the
lesser of (a) the aggregate amount of the Obligations of the Company under the
Notes and this Indenture and (b) the amount, if any, which would not have (i)
rendered such Guarantor insolvent (as such term is defined in the Bankruptcy
Law) or (ii) left such Guarantor with unreasonably small capital at the time
its Subsidiary Guarantee of the Notes was entered into; provided that, it will
be a presumption in any lawsuit or other proceeding in which a Guarantor is a
party that the amount guaranteed pursuant to the Subsidiary Guarantee is the
amount set forth in clause (a) above unless any creditor, or representative of
creditors of such Guarantor, or debtor in possession or trustee in bankruptcy
of the Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of the Guarantor is the amount set forth in clause (b) above. In
making any determination as to solvency or sufficiency of capital of a
Guarantor in accordance with the previous sentence, the right of such Guarantor
to contribution from other Guarantors, and any other rights such Guarantor may
have, contractual or otherwise, shall be taken into account.
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SECTION 10.7 "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article X shall in each case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 10 in place of the Trustee.
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