Exhibit T3C
INDENTURE dated as of _________ __, 1998 between
XXXXXX, INC., a Delaware corporation (the "Company"), THE
HYPOTHECATORS (as defined herein), and FIRST TRUST NATIONAL
ASSOCIATION, a national banking association, as trustee (the
"Trustee").
The Company and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of
the Holders of the Company's 13% Senior Notes due November 15,
2004 (the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 Definitions.
"Accountants' Certificate" means a certificate from a
firm of independent certified public accountants of national
standing designated by the Company.
"Accrued Interest Notes" means any Notes issued in
payment of accrued interest on the Notes pursuant to the second
paragraph of Section 2 of the Notes and the last paragraph of
Section 2.1 of this Indenture, as the same may be amended or
supplemented from time to time in accordance with their terms.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Subsidiary of the
Company (or such Person is merged with the Company or one of its
Subsidiaries) or assumed in connection with the acquisition of
assets from any such Person and not incurred in connection with,
or in the contemplation of, such Person becoming a Subsidiary or
such acquisition.
"Additional Interest Calculation Date" means November
15, 1997.
"Adjusted Net Income" means Consolidated Net Income
plus (i) the amount of income taxes deducted in determining
Consolidated Net Income to the extent such taxes were not
actually paid as the result of the utilization of net operating
loss carryforwards and (ii) amortization expense deducted in
determining Consolidated Net Income to the extent such
amortization expense relates to the amortization of goodwill
created in connection with the Consensual Plan.
"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.
"Agent" means any Registrar, Paying Agent or
co-registrar of the Notes.
"Arrangement Fee Note" means the $500,000 aggregate
principal amount RII Note issued to Oaktree Capital Management
LLC pursuant to the Consensual Plan.
"Asset Acquisition" means (a) an Investment by the
Company or any Subsidiary of the Company in any other Person
pursuant to which such Person shall become a Subsidiary of the
Company, or shall be merged with or into the Company or any
Subsidiary of the Company, (b) the acquisition by the Company or
any Subsidiary of the Company of the assets of any Person (other
than a Subsidiary of the Company) which constitute all or
substantially all of the assets of such Person or (c) the
acquisition by the Company or any Subsidiary of the Company of
any division or line of business of any Person (other than a
Subsidiary of the Company).
"Asset Sale" means any direct or indirect sale, lease,
transfer or other disposition or series of related sales, leases,
transfers or other dispositions, including, without limitation,
by merger or consolidation, made by the Company or any of its
Subsidiaries (whether pursuant to any sale and leaseback
transaction (other than to the extent included in clause (vii) of
the definition of Permitted Indebtedness), by exchange of assets
or otherwise and whether by operation of law or otherwise,) to
any Person other than the Company or one of its Wholly Owned
Subsidiaries, in one transaction or a series of related
transactions, of any assets of the Company or any of its
Subsidiaries including, without limitation, assets consisting of
any Capital Stock or other securities held by the Company or any
of its Subsidiaries (including by way of issuance of Capital
Stock of such Subsidiary); provided, however, that an "Asset
Sale" shall not include (i) the sale of inventory in the ordinary
course of business, (ii) the sale by Xxxxxx Brothers, Inc. of
the ATG Assets or (iii) a "like-kind exchange" of an asset in
exchange for an asset of a third party, so long as, in the
judgment of the Company's Board of Directors, the asset received
by the Company or such Subsidiary in such exchange (x) has a Fair
Market Value at least equal to the Fair Market Value of the asset
transferred by the Company or such Subsidiary and (y) is usable
in a Related Business to at least the same extent as the asset
transferred by the Company or such Subsidiary.
"ATG Assets" means the assets of the Apparel Textile
Group division of Xxxxxx Brothers, Inc. a wholly-owned subsidiary
of RII as of the date hereof.
"Attributable Debt" means, in respect of a sale and
leaseback transaction, at the time of determination, the greater
of (a) the Fair Market Value of the property subject to such
transaction and (b) the present value (discounted at the actual
rate of interest implicit in such transaction) of the obligation
of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or
may, at the option of the lessor, be extended).
"Authorized Denominations" shall mean denominations of
$1,000, or integral multiples thereof, except in the case of
Accrued Interest Notes, in which case Authorized Denominations
shall mean any denomination.
"Bank Revolving Credit Facility" means that certain
Credit Agreement dated as of November 6, 1997 (as amended,
modified or supplemented from time to time) together with all
other "Loan Documents" (as defined therein) among RII, Xxxxxx
Brothers, Inc., the other "Credit Parties" and "Lenders" (each as
defined therein) now or hereafter parties thereto and General
Electric Capital Corporation, as agent, and any agreement
governing Indebtedness incurred to refinance or refund the
borrowings and commitments then outstanding or permitted to be
outstanding under the Bank Revolving Credit Facility.
"Bankruptcy Code" means Title 11 U.S. Code, as amended.
"Bankruptcy Law" means the Bankruptcy Code or any
similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of
the Company, or any authorized committee of the Board of
Directors of the Company.
"Business Day" means any day other than a Legal
Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required
to be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated) of such Person's capital stock whether now
outstanding or issued after the Issue Date, including, without
limitation, all Preferred Stock, and any warrants, options or
rights to purchase any of the foregoing.
"Cash Equivalents" means (i) securities issued directly
or fully Guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not
more than one (1) year from the date of acquisition, (ii)
certificates of deposit and Eurodollar time deposits with
maturities of one (1) year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one (1) year
and overnight bank deposits, in each case with any domestic
commercial bank having capital and surplus in excess of $500
million or domestic branch office or agency of a foreign
commercial bank of recognized international standing having
capital and surplus in excess of $500 million and, in either
case, whose long-term debt is rated at least "A" by either
Standard and Poor's Corporation (or any successor thereto) or
Xxxxx'x Investors Service, Inc. (or any successor thereto), (iii)
repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (i)
and (ii) entered into with any financial institution meeting the
qualifications specified in clause (ii) above, (iv) any security
maturing not more than one (1) year after the date of
acquisition, backed by standby or direct-pay letters of credit
issued by a bank meeting the qualifications described in clause
(ii) above, (v) any security maturing not more than one (1) year
after the date of acquisition, issued directly or fully
Guaranteed or insured by any state, commonwealth or territory of
the United States, or by any political subdivision thereof, and
rated at least "A" by either Standard and Poor's Corporation (or
any successor thereto) or Xxxxx'x Investors Service, Inc. (or any
successor thereto), (vii) commercial paper having the highest
rating obtainable from Xxxxx'x Investors Service, Inc. (or any
successor thereto) or Standard and Poor's Corporation (or any
successor thereto) and in each case maturing within one (1) year
after the date of acquisition and (viii) investments in money
market funds including those managed by the Trustee or an
Affiliate thereof, which invest substantially all their assets in
securities of the types described in clauses (i) through (vii)
above.
"Change of Control" means (i) any sale, lease or other
transfer of all or substantially all of the assets of the Company
to any Person (other than a Wholly Owned Subsidiary of the
Company) in one transaction or a series of related transactions;
(ii) any consolidation or merger of the Company with another
Person pursuant to a transaction in which the outstanding Voting
Stock of the Company is changed into or exchanged for cash,
securities or other property, other than any such transaction
where (a) no Disqualified Stock is issued and (b) holders of
Voting Stock of the Company immediately prior to such transaction
beneficially own (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act as in effect on the date of this Indenture),
directly or indirectly, not less than a majority of the Voting
Stock of the surviving corporation of such merger or
consolidation outstanding immediately after such transaction;
(iii) a Person or group (other than any Permitted Holder) becomes
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act as in effect on the date of this Indenture) of
Voting Stock of the Company representing more than 50% of the
voting power of all Voting Stock of the Company then outstanding;
provided, however, that this clause (iii) shall not be applicable
by reason of any issuance or transfer of Common Stock pursuant to
Section 4.20 hereof; (iv) Continuing Directors cease to
constitute at least a majority of the Board of Directors of the
Company; provided, however, that this clause (iv) shall not be
applicable if the Continuing Directors do not constitute at least
a majority of the Board of Directors as a result of the election
of directors nominated by any of the Permitted Holders; (v) the
stockholders of the Company shall approve any plan or proposal
for the liquidation or dissolution of the Company or (vi) RII is
no longer 100% owned by the Company and Wholly-Owned Subsidiaries
of the Company.
"Class A Common Stock" means the shares of Class A
Common Stock, $.01 par value per share, of the Company, as
adjusted to reflect any merger, consolidation, recapitalization,
reclassification, split-up, stock dividend, rights offering,
reverse stock split or other action made, declared or effected
with respect to the Class A Common Stock.
"Class B Common Stock" means the shares of Class B
Common Stock, $.01 par value per share, of the Company, as
adjusted to reflect any merger, consolidation, recapitalization,
reclassification, split-up, stock dividend, rights offering,
reverse stock split or other action made, declared or effected
with respect to the Class B Common Stock. For purposes of this
definition, Class B Common Stock shall include Retained Class A
Shares.
"Class B Voting Trustee" means the trustee under the
Voting Trust Agreement.
"Commodity Agreement" means any commodity purchase
agreement, commodity swap agreement or other similar agreement of
any Person designed to protect such Person or any of its
Subsidiaries against fluctuations in commodity values.
"Common Stock" means the Class A Common Stock and Class
B Common Stock, collectively.
"Company" means the party named as such above, until a
successor replaces such Person in accordance with the terms of
this Indenture, and thereafter means such successor.
"Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board,
President or any of its Vice Presidents, and by its Chief
Financial Officer, Treasurer, any of its Assistant Treasurers,
its Secretary or any of its Assistant Secretaries and delivered
to the Trustee.
"Consensual Plan" means the Amended Joint Plan of
Reorganization dated as of January 12, 1998, adopted with respect
to the Company and RII, as the same may be amended or modified
from time to time.
"Consolidated Cash Flow" means, for any period, on a
consolidated basis for the Company and its Subsidiaries, the sum
(without duplication) for such period of Consolidated Net Income
plus, to the extent deducted in determining Consolidated Net
Income, each of (i) Consolidated Income Tax Expense, (ii)
Consolidated Depreciation and Amortization Expense, (iii)
Consolidated Fixed Charges and (iv) all other non-cash items
deducted from net revenue in determining Consolidated Net Income
for such period except for any non-cash charges that represent
accruals of, or reserves for, cash disbursements to be made in
any future accounting period.
"Consolidated Depreciation and Amortization Expense" of
the Company and its Subsidiaries means, for any period for which
the determination thereof is to be made, the depreciation and
amortization expense (including, without limitation, amortization
of goodwill, other intangibles, debt discount and debt issue
costs) of the Company and such Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Fixed Charges" means, for the Company and
its Subsidiaries, for any period, the sum (without duplication)
of (i) the aggregate amount of interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid or accrued
during such period (including any non-cash interest payments or
accruals, the interest portion of Capital Lease Obligations, all
amortization of debt discount (including amortization of fees),
net costs pursuant to Interest Rate Agreements, Currency
Agreements and Commodity Agreements (including amortization of
fees) and the interest component of any deferred payment
obligation) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, excluding (to the
extent otherwise included) the amortization or write off of any
deferred financing costs relating to the Old Notes and incurred
in connection with the Restructuring Agreement and the
transactions contemplated thereby, (ii) one-third of the rental
expense attributable to operating leases and (iii) dividends in
respect of Preferred Stock and Disqualified Stock.
"Consolidated Income Tax Expense" of the Company and
its Subsidiaries means, for any period for which the
determination thereof is to be made, the aggregate of the income
tax expense of the Company and such Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any
Person for any period, the aggregate of the Net Income of such
Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided, that (i) 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 only to the extent of the amount of dividends or
distributions paid in cash to the Person whose Consolidated Net
Income is being determined or a Wholly Owned Subsidiary thereof,
(ii) the Net Income of any Subsidiary that is subject to any
Payment Restriction shall be included in Consolidated Net Income
to the extent of the amount of dividends or distributions that
could have been paid in cash to the Person whose Consolidated Net
Income is being determined or a Wholly Owned Subsidiary of such
Person (to the extent such Wholly Owned Subsidiary is not subject
to any Payment Restriction), (iii) the Net Income of any Person
acquired by the Person whose Consolidated Net Income is being
determined or a Subsidiary thereof in a pooling of interests
transaction for any period prior to the date of such acquisition
shall be excluded and (iv) the cumulative effect of a change in
accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any
Person at any date, the sum of (i) the consolidated equity of the
common stockholders of such Person and its consolidated
Subsidiaries as of such date plus (ii) the respective amounts
reported on such Person's balance sheet as of such date with
respect to any series of Preferred Stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out
of net earnings in respect of the year of such declaration and
payment, but only to the extent of any cash received by such
Person upon issuance of such Preferred Stock, less (x) all
write-ups (other than write-ups resulting from foreign currency
translations and write- ups of tangible assets of a going concern
business made within 12 months after the acquisition of such
business) subsequent to the Issue Date in the book value of any
asset owned by such Person or a consolidated Subsidiary of such
Person, (y) all Investments as of such date in unconsolidated
Subsidiaries and in Persons that are not Subsidiaries (except, in
each case, Permitted Investments), and (z) all unamortized debt
discount and expense and unamortized deferred charges as of such
date, all of the foregoing determined in accordance with GAAP.
"Consolidation Event" means the entry by a court of
competent jurisdiction, in connection with an event described in
Section 11.2, of an order (which order shall not have been
vacated upon rehearing or appeal) which provides for (a) the
substantive consolidation of the Company and RII or any of its
Subsidiaries or affiliates, (b) that the Company and RII or any
of its Subsidiaries or affiliates are alter egos, or (c)
otherwise finding that the assets and liabilities of the Company
should be consolidated or merged with the assets and liabilities
of RII or any of its Subsidiaries or affiliates. The provisions
of this Indenture relating to Consolidation Events are for
protective and precautionary purposes only and do not indicate
that any of the parties hereto believe that any Consolidation
Event will or should occur.
"Consulting Agreements" means the consulting agreements
dated as of October 17, 1997 and those certain letter agreements
dated as of October 17, 1997 referred to in such consulting
agreements, between Xxxxx X. Xxxx, Xxxxx X. Xxxx, Xx., and
Xxxxxxx X. Xxxx, respectively, and Xxxxxx, S.p.A.
"Continuing Directors" means, with respect to the
Company, a director who either was a member of the Board of
Directors of the Company on the Issue Date or who became a
director of the Company subsequent to such date and whose
election, or nomination for election by the Company's
stockholders, was duly approved by a majority of the Continuing
Directors then on the Board of Directors of the Company, either
by a specific vote or by approval of the proxy statement issued
by the Company on behalf of the entire Board of Directors of the
Company in which such individual is named as nominee for
director.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.2 hereof or such
other address as to which the Trustee may give written notice to
the Company.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar agreement or
arrangement of any Person designed to protect such Person or any
of its Subsidiaries against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy
Law.
"Default" means any event that is or with the passage
of time or the giving of notice or both would be an Event of
Default.
"Depository" means, with respect to the Notes issued in
the form of one or more Global Notes, The Depository Trust
Company or another Person designated as Depository by the Company
(or any successor thereto), which Person must be a clearing
agency registered under the Exchange Act.
"Disqualified Stock" means any Capital Stock of the
Company or any Subsidiary of the Company 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 or
with the passage of time, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in
part, on or prior to the maturity date of the Notes, or which is
exchangeable or convertible (whether at the option of the Company
or the holder thereof or upon the happening of any event) into
debt securities of the Company or any Subsidiary of the Company,
except to the extent and only to the extent that such exchange or
conversion rights cannot occur prior to the maturity date of the
Notes.
"Employment Agreement Guarantees" means the guaranty by
The Xxxxxx Company LLC of the Employment Agreements, a copy of
which is included in the Supplement to the Consensual Plan.
"Employment Agreements" means the employment agreements
dated as of November 18, 1997 and those two certain letter
agreements referred to in section 17 of such employment
agreements, between Xxxxx X. Xxxx, Xxxxx X. Xxxx, Xx., and
Xxxxxxx X. Xxxx, respectively, and Xxxxxx Brothers, Inc.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Existing Indebtedness" means Indebtedness of the
Company and its Subsidiaries outstanding on the Issue Date, other
than the Bank Revolving Credit Facility, until such Indebtedness
is repaid.
"Fair Market Value" means with respect to any asset,
property or Capital Stock, the price which could be negotiated in
an arm's-length, free market transaction between a willing and
knowledgeable seller and a willing and knowledgeable buyer,
neither of whom is under undue pressure or compulsion to complete
the transaction. "Fair Market Value" shall be determined by the
Board of Directors of the Company acting in good faith and shall
be evidenced by a duly and properly adopted resolution of the
Board of Directors set forth in an Officers' Certificate
delivered to the Trustee.
"Fenchurch Tax Sharing Note" means the $1,250,000
aggregate principal amount 13% Senior Note due November 15, 2004
issued to Fenchurch, Inc. on the terms summarized in the
Consensual Plan.
"Fixed Charge Coverage Ratio" means, for any Person,
for any period, such Person's ratio of Consolidated Cash Flow to
Consolidated Fixed Charges for such period; provided, however,
that (i) if the Company or any Subsidiary has incurred any
Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to
calculate the Fixed Charge Coverage Ratio is an incurrence of
Indebtedness, or both, Consolidated Cash Flow and Consolidated
Fixed Charges for such period shall be calculated after giving
effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been incurred on the first day of such period
and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day
of such period, (ii) if the Company or any Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness
since the beginning of such period or if any Indebtedness is to
be repaid, repurchased, defeased or otherwise discharged (in each
case other than Indebtedness incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid and
has not been replaced) on the date of the transaction giving rise
to the need to calculate the Fixed Charge Coverage Ratio,
Consolidated Cash Flow and Consolidated Fixed Charges for such
period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period and as if
the Company or such Subsidiary had not earned the interest income
actually earned during such period in respect of cash or Cash
Equivalents used to repay, repurchase, defease or otherwise
discharge such Indebtedness, (iii) if since the beginning of such
period the Company or any Subsidiary shall have made any Asset
Sale, the Consolidated Cash Flow for such period shall be reduced
by an amount equal to the Consolidated Cash Flow (if positive)
directly attributable to the assets which are the subject of such
Asset Sale for such period, or increased by an amount equal to
the Consolidated Cash Flow (if negative), directly attributable
thereto for such period and Consolidated Fixed Charges for such
period shall be reduced by an amount equal to the Consolidated
Fixed Charges directly attributable to any Indebtedness of the
Company or any Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to the Company and its
continuing Subsidiaries in connection with such Asset Sale for
such period (or, if the equity interests of any Subsidiary are
sold, the Consolidated Fixed Charges for such period directly
attributable to the Indebtedness of such Subsidiary to the extent
that none of the Company or any of its Subsidiaries will have any
obligation with respect to such Indebtedness after such sale),
(iv) if since the beginning of such period the Company or any
Subsidiary (by merger or otherwise) shall have made an Asset
Acquisition, including any Asset Acquisition occurring in
connection with a transaction requiring a calculation to be made
hereunder, Consolidated Cash Flow and Consolidated Fixed Charges
for such period shall be calculated after giving pro forma effect
thereto (including the incurrence of any Indebtedness) as if such
Asset Acquisition occurred on the first day of such period and
(v) if since the beginning of such period any Person (that
subsequently became a Subsidiary or was merged with or into the
Company or any Subsidiary since the beginning of such period)
shall have made any Asset Sale or Asset Acquisition that would
have required an adjustment pursuant to clause (iii) or (iv)
above if made by the Company or a Subsidiary during such period,
Consolidated Cash Flow and Consolidated Fixed Charges for such
period shall be calculated after giving pro forma effect thereto
as if such Asset Sale or Asset Acquisition occurred on the first
day of such period. For purposes of this definition, whenever
pro forma effect is to be given to an Asset Acquisition, the
amount of income or earnings relating thereto and the amount of
Consolidated Fixed Charges associated with any Indebtedness
incurred in connection therewith, the pro forma calculations
shall be determined in good faith by the chief financial officer
of the Company and accompanied by a report of the Company's
independent public accountants stating that such calculations
were made in compliance with Article 11 of Regulation S-X under
the Securities Act. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest of
such Indebtedness shall be calculated as if the rate in effect on
the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term in excess of 12 months).
"GAAP" means United States generally accepted
accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved
by a significant segment of the accounting profession, which are
in effect from time to time.
"Government Securities" means securities which are (i)
direct obligations of the United States of America for the
payment of which the full faith and credit of the United States
is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally
Guaranteed as a full faith and credit obligation by the United
States of America which, in either case, are not callable or
redeemable at the option of the issuer thereof.
"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 or other liabilities.
"Xxxx Associate" means (a) each of, and any member of
the immediate family of any of, Xxxxx X. Xxxx, Xxxxx X. Xxxx,
Xx., Xxxxxxx X. Xxxx or Xxxxxxxx Xxxx (all of such individuals
and such members of their immediate families are collectively
referred to as the "Harts"), (b) any corporation or organization
(other than the Company or any of its subsidiaries) of which a
Xxxx is an executive officer or partner or of which a Xxxx is,
directly or indirectly, the beneficial owner of 10% or more of
any class of equity securities or (c) any trust or other estate
in which a Xxxx has a beneficial interest or as to which a Xxxx
serves as trustee or in a similar capacity. For the purposes of
this definition, a Person's "immediate family" includes that
Person's spouse, parents, children, siblings, mothers and
fathers-in-law, daughters and sons-in- law and brothers and
sisters-in-law.
"Holder" or "Noteholder" means a registered owner of
the Notes as reflected on the books of the Company.
"Hypothecators" means Xxxxx X. Xxxx, Xxxxx X. Xxxx,
Xx., Xxxxxxx X. Xxxx and Xxxxxxxx Xxxx.
"incur" means, with respect to any Indebtedness or
other obligation of any Person, to create, issue, incur (by
conversion, exchange or otherwise), assume, Guarantee (including
the Guarantee of the Indebtedness of a Subsidiary or other
Affiliate) or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required
pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "incurrence",
"incurred," "incurrable" and "incurring" shall have meanings
correlative to the foregoing); provided, that the accrual of
interest (whether such interest is payable in cash or in kind)
and the accretion of original issue discount shall not be deemed
an incurrence of Indebtedness; provided, further that (a) any
Indebtedness or Disqualified Stock of a Person existing at the
time such Person becomes (after the Issue Date) a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) of
the Company shall be deemed to be incurred or issued for purposes
of Section 4.11, as the case may be, by such Subsidiary at the
time it becomes a Subsidiary of the Company and (b) any
amendment, modification or waiver of any document pursuant to
which Indebtedness was previously incurred shall be deemed to be
an incurrence of Indebtedness unless such amendment, modification
or waiver does not (i) increase the principal or premium thereof
or interest rate thereon (including by way of original issue
discount), (ii) change to an earlier date the stated maturity
thereof or the date of any scheduled or required principal
payment thereon or the time or circumstances under which such
Indebtedness may or shall be redeemed or the Weighted Average
Life to Maturity thereof, (iii) if such Indebtedness is
subordinated to the Notes, modify or affect, in any manner
adverse to the Holders, such subordination, (iv) if the Company
is the obligor thereon, provide that a Subsidiary of the Company
not already an obligor thereon shall be an obligor thereon or (v)
violate, or cause the Indebtedness to violate, the provisions of
Section 4.12 or 4.13.
"Indebtedness" means, with respect to any Person,
without duplication, (i) all liabilities, contingent or
otherwise, of such Person (a) for borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), (b) evidenced by bonds,
notes, debentures, drafts accepted or similar instruments or
letters of credit or representing the balance deferred and unpaid
of the purchase price of any property or (c) for the payment of
money relating to a Capital Lease Obligation; (ii) obligations
under reimbursement agreements of such Person with respect to
letters of credit; (iii) obligations of such Person with respect
to Interest Rate Agreements, Currency Agreements or Commodity
Agreements; (iv) all liabilities of others of the kind described
in the preceding clause (i), (ii) or (iii) that (a) such Person
has Guaranteed, (b) have been incurred by a partnership in which
it is a general partner (to the extent such Person is liable,
contingently or otherwise therefor) or (c) are otherwise its
legal liability (other than endorsements for collection in the
ordinary course of business); and (v) all obligations of others
secured by a Lien to which any of the properties or assets
(including, without limitation, leasehold interests and any other
tangible or intangible property rights) of such Person are
subject, whether or not the obligations secured thereby shall
have been assumed by such Person or shall otherwise be such
Person's legal liability; provided, however, that notwith
standing anything in the foregoing that may be deemed to be to
the contrary, Indebtedness shall not include (i) liabilities
arising from agreements providing for indemnification or
adjustment of purchase price or from Guarantees securing any
obligations of the Company or any Subsidiary pursuant to such
agreements, incurred or assumed in connection with the
disposition of any business, assets or Subsidiary of the Company
(other than Guarantees or similar credit support by the Company
or any Subsidiary of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or
Subsidiary for the purpose of financing such acquisition or
Indebtedness relating to any sale and leaseback transaction), so
long as that the maximum aggregate liability in respect of the
foregoing permitted pursuant to this clause (i) shall at no time
exceed the net cash proceeds actually received from the sale of
such business, assets or Subsidiary; (ii) any Trade Payables and
any other accrued current liabilities incurred in the ordinary
course of business as the deferred purchase price of property
acquired in the ordinary course of business; (iii) liabilities
arising from Guarantees to suppliers, lessors, licensees,
contractors, franchisees or customers incurred in the ordinary
course of business (exclusive of obligations for the payment of
money borrowed and reimbursement obligations in respect of
amounts drawn under letters of credit); and (iv) performance,
completion, guarantee, surety and similar bonds that do not
constitute obligations for borrowed money to the extent provided
by the Company or any Subsidiary in the ordinary course of
business consistent with past practice and relating to goods and
services to be provided by the Company or such Subsidiary. The
amount of Indebtedness of any Person at any date shall be,
without duplication, (i) the outstanding balance at such date of
all unconditional obligations as described above and the maximum
liability of any such contingent obligations at such date and
(ii) in the case of Indebtedness of others secured by a Lien to
which the property or assets owned or held by such Person is
subject but which is otherwise nonrecourse to such Person, the
lesser of the Fair Market Value at such date of any assets
subject to a Lien securing the Indebtedness of others and the
amount of the Indebtedness secured.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Interest Rate Agreement" means any swap agreement,
interest rate cap or collar agreement or other similar agreement
or arrangement of any Person designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates.
"Investment" of any Person means (i) all investments by
such Person in any other Person in the form of loans, advances or
capital contributions, (ii) all Guarantees of Indebtedness or
other obligations of any other Person by such Person, (iii) all
purchases (or other acquisitions for consideration) by such
Person of Indebtedness, Capital Stock or other securities of any
other Person and (iv) all other items that would be classified as
investments (including, without limitation, purchases of assets
outside the ordinary course of business) on a balance sheet of
such Person prepared in accordance with GAAP; provided, that
notwithstanding anything in the foregoing that may be deemed to
be to the contrary, Investment shall not include (i) sales of
goods or services on trade credit terms consistent with the
Company's and its Subsidiaries' past practices or otherwise
consistent with trade credit terms in common use in the industry
and recorded as accounts receivable on the balance sheet of the
Person making such sale; (ii) loans and advances to employees of
the Company in the ordinary course of business and consistent
with past practices, including travel, moving and other like
advances; (iii) lease, utility and other similar deposits in the
ordinary course of business; (iv) obligations or securities
received in the ordinary course of business in settlement of
debts owing to the Company or a Subsidiary thereof as a result of
foreclosure, perfection, enforcement of any Lien or otherwise;
(v) Investments in existence on the Issue Date; and (vi)
Investments in securities not consisting of cash or Cash
Equivalents and received in connection with an Asset Sale or
other disposition of assets permitted hereunder.
"Issue Date" means [ ], 1998, the date on
which Notes are first to be issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of New York or the city in
which the Trustee has its Corporate Trust Office are not required
to be open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
"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
(excluding options or agreements for sales of assets not
prohibited by the Indenture) 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).
"Marketable Securities" means securities listed and
trading on any national securities exchange or approved for
quotation and trading on the National Market System of the
National Association of Securities Dealers Automated Quotation
System; provided, however, that (a) either any such security is
freely tradable under the Securities Act upon issuance or the
holder thereof has contractual registration rights that will
permit the sale of such Marketable Security pursuant to an
effective registration statement not later than ninety days after
issuance to the Company or one of its Wholly Owned Subsidiaries
and (b) such securities also are so listed or included for
trading privileges.
"Maturity Date" means November 15, 2004.
"Net Cash Proceeds" means, with respect to any Asset
Sale, the proceeds of such Asset Sale in cash or Cash
Equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but
not interest, component thereof) when received in the form of
cash or Cash Equivalents (except to the extent such obligations
are financed or sold with recourse to the Company or any
Subsidiary of the Company) and proceeds from the conversion of
other property received when converted to cash or Cash
Equivalents, net of (a) third- party brokerage commissions, sales
commissions and other third-party fees and expenses (including
(x) reasonable fees and expenses of counsel, accountants and
investment bankers; (y) all legal, title and recording tax
expenses; and (z) all payments made to obtain any necessary
consent to such Asset Sale) related to such Asset Sale, (b)
provisions for all cash taxes payable as a result of such Asset
Sale, (c) payments made to repay Indebtedness (other than
Indebtedness under the Bank Revolving Credit Facility, repayment
of which is governed by Section 4.9) or any other obligation
outstanding at the time of such Asset Sale the incurrence of
which was not prohibited by this Indenture and that is secured by
a Lien, the incurrence of which was not prohibited by this
Indenture, on the property or assets sold to the extent required
by the terms of such Lien and actually repaid in cash or Cash
Equivalents, (d) amounts provided by the Company or any
Subsidiary as a reserve, to the extent required by GAAP, against
any liabilities associated with such Asset Sale and retained by
the Company or any Subsidiary, as the case may be, after such
Asset Sale; and (e) all distributions and other payments required
to be made to minority interest holders in subsidiaries or joint
ventures as a result of such Asset Sale; provided, however, that
the amounts of any such reserves, to the extent not utilized for
the foregoing purposes or no longer required from time to time to
be retained as reserves, shall be Net Cash Proceeds at such times
when any such amounts cease to be retained as reserves. To the
extent, if any, that any consideration for any such Asset Sale
(which would otherwise constitute Net Cash Proceeds) is required
to be held in escrow pending determination of a purchase price
adjustment, such consideration (or any portion thereof) shall
become Net Cash proceeds only at such time as it is released to
the Company or any Subsidiary from escrow.
"Net Equity Proceeds" means (a) in the case of any sale
by the Company of Qualified Capital Stock of the Company, the
aggregate net cash proceeds received by the Company, after
payment of expenses, commissions and the like incurred in
connection therewith (including reasonable fees and expenses of
counsel and investment bankers), and (b) in the case of any
exchange, exercise, conversion or surrender of any outstanding
Indebtedness of the Company or any Subsidiary for or into shares
of Qualified Capital Stock of the Company, the amount of such
Indebtedness (or, if such Indebtedness was issued at an amount
less than the stated principal amount thereof, the accrued amount
thereof as determined in accordance with GAAP) as reflected in
the consolidated financial statements of the Company prepared in
accordance with GAAP as of the most recent date next preceding
the date of such exchange, exercise, conversion or surrender
(plus any additional cash amount required to be paid by the
holder of such Indebtedness to the Company or to any Wholly Owned
Subsidiary of the Company upon such exchange, exercise,
conversion or surrender and less any and all payments made to the
holders of such Indebtedness, and all other expenses incurred by
the Company in connection therewith), in the case of each of
clauses (a) and (b) to the extent consummated after the Issue
Date.
"Net Income" means, with respect to any Person, the net
income (loss) of such Person, determined in accordance with GAAP,
excluding, however, (i) any gain (but not loss), together with
any related provisions for taxes on such gain (but not loss),
realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback
transactions) or (b) the disposition of any securities or the
extinguishment of any Indebtedness of such Person or any of its
Subsidiaries and (ii) any extraordinary gain (but not loss),
together with any related provision for taxes on such
extraordinary gain (but not loss).
"New Equity Holders" means (i) Persons who receive
Class B Common Stock in connection with the Consensual Plan, (ii)
Persons who are entitled to receive Additional Interest pursuant
to Section 4.20 and (iii) transferees of the Person included in
clauses (i) and (ii) above.
"Non-Recourse Pledge Agreement" means the Non-Recourse
Pledge Agreement dated as of the date of this Indenture, as
amended, amended and restated or otherwise modified from time to
time, pursuant to which the Hypothecators have pledged on a
non-recourse basis the Pledged Collateral owned by them to the
Trustee, in the form attached hereto as Exhibit B.
"Notes" means the Company's 13% Senior Notes issued
pursuant to this Indenture (including any Accrued Interest
Notes).
"Officer" means, with respect to any Person, the
Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed on
behalf of the Company by two Officers of the Company, one of whom
must be the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, that
meets the requirements of Section 12.5 hereof.
"Old Notes" means the 11% Senior Notes due 2002 of RII
in the original aggregate principal amount of $122,500,000 and
the 13 3/4% Subordinate Notes due 2001 of RII in the original
aggregate principal amount of $16,000,000, collectively.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee that meets the
requirements of Section 12.5 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.
"Other Permitted Liens" means (i) Liens for taxes,
assessments, governmental charges or claims which are not yet
delinquent or which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets
subject to such Lien, and for which a reserve or other
appropriate provision, if any, as shall be required in conformity
with GAAP shall have been made; (ii) statutory Liens of
landlords, vendors and laborers and carriers', warehousemen's,
mechanics', suppliers', materialmen's, repairmen's, or other like
Liens arising in the ordinary course of business and with respect
to amounts which are not yet delinquent or which are being
contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale
of the property or assets subject to such Lien, and for which a
reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made; (iii) Liens incurred or
deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other
types of social security legislation or regulations; (iv) Liens
incurred or deposits made to secure the performance of tenders,
bids, leases, statutory obligations, surety and appeal bonds,
government contracts, trade contracts, performance and
return-of-money bonds and other obligations of a like nature
incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (v) easements,
rights-of-way, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material
respect with the business of the Company or any Subsidiary
incurred in the ordinary course of business; (vi) any attachment
or judgment Lien, unless the judgment it secures shall not,
within 45 days after the entry thereof, have been discharged or
the execution thereof stayed pending appeal; or (vii) rights of
banks to set off deposits against debts owed to such banks.
"Payment Restriction" means with respect to a
Subsidiary of any Person, any encumbrance, restriction or
limitation, whether by operation of the terms of its charter or
by reason of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation, on the ability of (i)
such Subsidiary to (a) pay dividends or make other distributions
on its Capital Stock or make payments on any obligation,
liability or Indebtedness owed to such Person or any other
Subsidiary of such Person, (b) make loans or advances to such
Person or any other Subsidiary of such Person, or (c) transfer
any of its properties or assets to such Person or any other
Subsidiary of such Person, or (ii) such Person or any other
Subsidiary of such Person to receive or retain any such (a)
dividends, distributions or payments, (b) loans or advances, or
(c) transfer of properties or assets.
"Permitted Holders" means Oaktree Capital Management,
L.L.C., and Xxxxxxx Xxxxx and Co. and their respective Affiliates
and any group (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act as in effect on the date of this Indenture)
including any of the foregoing.
"Permitted Indebtedness" means (i) Indebtedness of RII
and its Subsidiaries in respect of the Bank Revolving Credit
Facility not to exceed $60 million in aggregate principal amount
at any one time outstanding as reduced in accordance with Section
4.9 (including any Guaranty of RII or any of its Subsidiaries
relating thereto); (ii) Existing Indebtedness; (iii) Indebtedness
pursuant to the Notes, the RII Notes and the Fenchurch Tax
Sharing Note; (iv) Indebtedness of the Company to any Wholly
Owned Subsidiary of the Company and Indebtedness of any
Subsidiary of the Company to the Company or another Wholly Owned
Subsidiary of the Company; provided, however, that any subsequent
transfer or any other event which results in any such Subsidiary
ceasing to be a Subsidiary or any subsequent transfer of such
Indebtedness (except to the Company or another Subsidiary) shall
be deemed, in each case, to constitute the incurrence of such
Indebtedness by the Issuer thereof; (v) obligations with respect
to Interest Rate Agreements, Currency Agreements and Commodity
Agreements; (vi) Permitted Refinancing Indebtedness; (vii) the
incurrence by the Company or any Subsidiary of Indebtedness
represented by Capital Lease Obligations, Attributable Debt,
mortgage financings or Purchase Money Obligations, in each case
incurred for the purpose of financing all or any part of the
purchase price or cost of construction of property (including
additions or replacements to or refurbishments or renovations of
existing property) newly acquired or constructed for use in the
business of the Company or such Subsidiary, in an aggregate
principal amount not to exceed $1 million at any time
outstanding; and (viii) Indebtedness of the Company or its
Subsidiaries (x) evidenced by standby letters of credit which are
issued in the ordinary course of business in support of
self-insurance obligations or operating leases or (y) evidenced
by standby letters of credit (not covered by the immediately
preceding clause (x)) to support industrial revenue bonds, or
agreements to reimburse the issuers of industrial revenue bonds,
in an aggregate principal amount not to exceed $2.5 million at
any time.
"Permitted Investments" means (i) any Investments in
the Company or in a Wholly Owned Subsidiary of the Company that
is engaged primarily in a Related Business; (ii) any Investments
in cash or Cash Equivalents; (iii) Investments by the Company or
any Wholly Owned 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 engaged primarily in a Related
Business; 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 (which remains a Wholly
Owned Subsidiary following consummation of the transaction) and
such Person is engaged primarily in a Related Business; and (iv)
other Investments in one or more Persons that do not exceed $2
million in the aggregate at any time outstanding; provided,
however, that the Company will not transfer to any of its
Subsidiaries assets or proceeds from the sale of its assets to
third parties.
"Permitted Liens" means (i) Liens existing on the Issue
Date; (ii) Liens securing Indebtedness outstanding under the Bank
Revolving Credit Facility as of the Issue Date; (iii) Liens on
property of a Person existing at the time such Person is merged
or consolidated with the Company or any Subsidiary of the Company
or at the time such Person becomes a Subsidiary of the Company;
provided, that such Liens were not created in connection with, or
in contemplation of, such merger or consolidation and do not
extend to any assets other than those of the Person merged or
consolidated with the Company or the Subsidiary of the Company;
(iv) Liens on property existing at the time of acquisition
thereof by the Company or any Subsidiary of the Company;
provided, that such Liens were not created in connection with, or
in contemplation of, such acquisition; (v) Purchase Money Liens
and Liens to secure Capital Lease Obligations, Attributable Debt
and mortgage financings included in clause (vii) of the
definition of Permitted Indebtedness covering only the property
acquired with such Indebtedness; (vi) Liens on assets of
Subsidiaries securing Indebtedness of Subsidiaries (other than
Permitted Indebtedness) incurred in compliance with Section 4.11;
(vii) Liens securing Permitted Refinancing Indebtedness;
provided, that such Liens extend to or cover only the property or
assets then securing the Indebtedness being refinanced; and
(viii) Other Permitted Liens.
"Permitted Refinancing Indebtedness" means any
Indebtedness of the Company or any of its Subsidiaries issued in
exchange for, or the net proceeds of which are used to refinance,
renew, replace, defease or refund other Indebtedness of the
Company or any of its Subsidiaries; provided, that, except in the
case of the redemption of all of the outstanding Notes, in which
case none of the following shall be applicable, (1) the principal
amount of such Indebtedness does not exceed the principal amount
of the Indebtedness so refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in
connection therewith), (2) such Indebtedness has a Weighted
Average Life to Maturity equal to or greater than and a final
maturity no earlier than the Weighted Average Life to Maturity
and final maturity of the Indebtedness being refinanced, renewed,
replaced, defeased or refunded, (3) with respect to Indebtedness
that is subordinated to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment pursuant to
terms at least as favorable to the Holders of Notes as those, if
any, contained in the documentation governing the Indebtedness
being refinanced, renewed, replaced, defeased or refunded, and
(4) no such Indebtedness incurred by the Company is refinanced,
renewed, replaced, defeased or refunded with Indebtedness
incurred by a Subsidiary.
"Person" means any individual, corporation,
partnership, limited liability company or partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political
subdivision thereof.
"Pledged Collateral" shall have the meaning given to
such term in the Non-Recourse Pledge Agreement.
"Preferred Stock" means, with respect to any Person,
all Capital Stock of such Person which has a preference in
liquidation or a preference with respect to the payment of
dividends to another class or series of Capital Stock.
"principal" of a Note means the principal of such Note
plus the premium, if any, thereon.
"pro forma" means, with respect to any calculation made
or required to be made pursuant to the terms of this Indenture, a
calculation in accordance with Article 11 of Regulation S-X under
the Securities Act.
"Purchase Money Liens" means Liens to secure or
securing Purchase Money Obligations permitted to be incurred
under this Indenture.
"Purchase Money Obligations" means Indebtedness
representing, or incurred to finance, the cost (a) of acquiring
any assets and (b) of construction or improvement of property, in
each case for use in the business of the Company and its
Subsidiaries (including Purchase Money Obligations of any other
Person at the time such other Person is merged with or is
otherwise acquired by the Company or a Subsidiary); provided,
that (i) the principal amount of such Indebtedness does not
exceed 100% of such cost, including construction or improvement
costs, (ii) any Lien securing such Indebtedness does not extend
to or cover any other asset or property other than the asset or
property being so acquired, constructed or improved and (iii)
such Indebtedness is incurred, and any Liens with respect thereto
are granted, within 180 days of the acquisition of such property
or asset.
"Qualified Capital Stock" means, with respect to any
Person, any Capital Stock of such Person that is not Disqualified
Stock.
"Registration Rights Agreement" means the Registration
Rights Agreement dated as of the date hereof, by and among the
Company and the holders named therein, relating to the Notes, as
such agreement may be amended, modified or supplemented from time
to time.
"Related Business" means the business engaged in on the
Issue Date by the Company and its Subsidiaries (other than the
business of the Apparel Textile Group of Xxxxxx Brothers, Inc.)
and those businesses incidental thereto.
"Reorganization Securities" means securities of the
Company (including shares of Common Stock) issued to a Holder
pursuant to an order or decree of a court of competent
jurisdiction entered in respect of any case, proceeding,
dissolution, liquidation or other winding up or event referred to
in Section 11.2, which securities (i) have a maturity, mandatory
redemption obligation or put right, if any, longer than, or
occurring after the final maturity date of, all Senior
Indebtedness outstanding on the date of issuance of such
Reorganization Securities (and to any securities issued in
exchange for any Senior Indebtedness), (ii) are unsecured and are
not supported by any guarantee or similar undertaking or credit
support extended by any Subsidiary or affiliate of the Company
not otherwise liable under the Notes unless such guarantee or
credit support is subordinated to all Senior Indebtedness, (iii)
in the case of debt securities, do not provide for terms and
conditions, and in the case of equity securities do not provide
for covenants, more onerous to the Company (and any successor
thereto) than those provided in the Senior Indebtedness, and (iv)
by their terms or by law are subordinated to Senior Indebtedness
outstanding on the date of issuance of such Reorganization
Securities (and to any securities issued in exchange of any such
Senior Indebtedness) at least to the same extent as the Notes are
subordinated to the Senior Indebtedness.
"Responsible Officer," when used with respect to the
Trustee, means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Restricted Investment" means an Investment other than
a Permitted Investment.
"Restricted Payment" means, with respect to any Person,
any of the following: (i) any dividend or other distribution in
respect of the Capital Stock of any such Person or any of its
Subsidiaries (other than (a) dividends or distributions payable
solely in Capital Stock (other than Disqualified Stock) and (b)
in the case of Subsidiaries of a Person, dividends or
distributions payable to such Person or to a Wholly Owned
Subsidiary of such Person); (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of
such Person or any of its Subsidiaries; (iii) the making of any
principal payment on, or the purchase, defeasance, repurchase,
redemption or other acquisition or retirement for value, prior to
any scheduled maturity, scheduled repayment or scheduled sinking
fund payment, of any Indebtedness which is subordinated in right
of payment to the Notes; and (iv) the making of any Restricted
Investment.
"Restructuring Agreement" means the Restructuring
Agreement, as amended and restated as of November 6, 1997 by and
among Oaktree Capital Management, Xxxxxxx, Xxxxx and Co., CIBC
Oppenheimer, RII and Fenchurch, Inc.
"Retained Class A Shares" means those shares of Class A
Common Stock which are permitted or required to be exchanged into
Class B Common Stock under this Agreement, the Non-Recourse
Pledge Agreement or the Stockholders Agreement but have not been
so exchanged (whether because of applicable law or otherwise).
Such shares shall be deemed shares of Class B Common Stock and
shall be treated in all respects as if they were shares of Class
B Common Stock, notwithstanding the fact that they may remain
denominated as Class A Common Stock.
"RII" means Xxxxxx Industries inc., a Delaware
corporation and a Wholly-Owned Subsidiary of the Company.
"RII Notes" means the 11% Senior Notes due 2002 of RII.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Payment" means (i) any payment or
distribution of any kind or character, whether in cash, property
or securities (including any such payment or distribution which
may be payable or deliverable by reason of the payment of any
other Indebtedness of the Company being subordinated to the
payment of the Notes), which may be payable or deliverable in
respect of the Notes in any case, proceeding, dissolution,
liquidation or other winding up or event referred to in Section
11.2, or otherwise on account of any principal or interest on the
Notes (except as provided in Section 11.11), (ii) any payment
from and after the occurrence of a Consolidation Event on account
of the purchase or other acquisition of the Notes by the Company,
or (iii) any payment made from and after the occurrence of a
Consolidation Event from any deposit pursuant to Section 8.4.
"Senior Indebtedness" means the following obligations,
whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, and whether at any time owing
actually or contingent:
(i) all obligations in respect of the RII Notes,
including all obligations in respect thereof consisting of the
principal of and premium, if any, and accrued and unpaid
interest, and all fees, expenses and other amounts (including
interest, premium or fees accruing on or after the commencement
of any case or proceeding under any Bankruptcy Law relating to
the Company or the occurrence of any event described in Section
11.2, whether or not any claim in respect thereof shall be
allowed or allowable in such case or proceeding); and
(ii) all obligations owing under the Bank Revolving
Credit Facility, including, without limitation, in respect of any
principal and premium, if any, and accrued and unpaid interest,
fees, expenses and other amounts (including interest, fees,
expenses and other amounts accruing on or after the commencement
of any proceeding under any Bankruptcy Law relating to the
Company or the occurrence of any event described in Section 11.2,
whether or not any claim in respect thereof shall be allowed or
allowable in such case or proceeding);
provided, however, that such obligations shall be Senior
Indebtedness only upon the occurrence of a Consolidation Event.
"Senior Indebtedness Representative" means any trustee,
agent or representative (if any) for any Senior Indebtedness and
shall include General Electric Capital Corporation, as Agent
under the Bank Revolving Credit Facility.
"Significant Subsidiary" means any Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such Regulation is in effect on the date hereof.
"SPA" means Xxxxxx S.p.A., an Italian corporation.
"Stockholders Agreement" means the Stockholders
Agreement among the Company and the stockholders of the Company
named therein.
"Subsidiary" means, with respect to any Person, (i) a
corporation a majority of whose Capital Stock with voting power,
under ordinary circumstances, to elect directors is at the time,
directly or indirectly, owned by such Person, by one or more
Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries
thereof or such Person and one or more Subsidiaries thereof,
directly or indirectly, at the date of determination thereof has
at least a majority ownership interest and has the power to, and
does, appoint the governing Person of such Person. For purposes
of this definition, any directors' qualifying shares or
investments by foreign nationals mandated by applicable law shall
be disregarded in determining the ownership of a Subsidiary.
"Tax Allocation Agreements" shall mean, collectively,
(a) the tax allocation agreement dated as of the first day of May
1986 entered into by and among Xxxxxx Incorporated (later renamed
Xxxx Holding Company), Newreeveco, Inc. (later renamed Xxxxxx
Industries, Inc.), Xxxxxx Brothers, Inc., Cinderella Knitting
Xxxxx, Inc., and Xxxxxx Trucking Company (later renamed Xxxxxx
Freight Systems, Inc.), effective for taxable periods through
December 31, 1991, as amended by agreement dated November 5,
1997, and (b) the tax allocation agreement effective as of the
first day of the consolidated return year beginning January 1,
1992, by and among Xxxx Holding Company Incorporated (later
renamed Fenchurch, Inc.), Fenchurch, Inc. (subsequently merged
into Xxxx Holding Company Incorporated), RII, Xxxxxx Brothers,
Inc., Xxxxxx Freight Systems, Inc., Xxxxxx Xxxxx, Inc., A.R.A.
Manufacturing Company, Xxxx Investments Properties Corporation,
Xxxx Capital Corporation, and Xxxxxx Holdings, Inc., as amended
on November 21, 1995 and as further amended by agreement made and
entered into as of November 5, 1997.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa- 77bbbb), as amended, as in effect on the date on
which this Indenture is qualified thereunder.
"Trade Payables" means any accounts payable or any
other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by a Person arising in the
ordinary course of business of such Person in connection with the
acquisition of goods and services.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor
serving hereunder.
"Voting Stock" means, with respect to any Person, (i)
one or more classes of the Capital Stock of such Person having
general voting power to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or
classes have or might have voting power by reason of the
happening of any contingency) and (ii) any Capital Stock of such
Person convertible or exchangeable without restriction at the
option of the holder thereof into Capital Stock of such Person
described in clause (i) above.
"Voting Trust Agreement" means the Voting Trust
Agreement, dated the date hereof, among the Company, the holders
of the Class B Common Stock and the Class B Voting Trustee named
therein or its successor serving thereunder.
"Weighted Average Life to Maturity" means, when applied
to any Indebtedness at any date, the number of years obtained by
dividing (a) the sum of the products obtained by multiplying (x)
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 (y)
the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment, by
(b) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Subsidiary" means, with respect to any
Person, a Subsidiary of such Person all of the outstanding
Capital Stock of which shall at the time be owned by such Person
or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such
Person.
Section 1.2 Other Definitions.
Defined in
Term Section
"Additional Default Interest". . . . . . . 4.20
"Additional Interest". . . . . . . . . . . 4.20
"Additional Interest Schedule" . . . . . . 4.20
"Affiliate Transaction". . . . . . . . . . 4.14
"Agent Members". . . . . . . . . . . . . . 2.14
"Asset Sale Offer" . . . . . . . . . . . . 3.9
"Change of Control Offer". . . . . . . . . 4.8
"Change of Control Payment". . . . . . . . 4.8
"Change of Control Payment Date" . . . . . 4.8
"Covenant Defeasance". . . . . . . . . . . 8.3
"Event of Default" . . . . . . . . . . . . 6.1
"Excess Proceeds". . . . . . . . . . . . . 4.9
"Global Notes" . . . . . . . . . . . . . . 2.1
"Legal Defeasance" . . . . . . . . . . . . 8.2
"Noteholder Equity Interest" . . . . . . . 4.20
"Offer Amount" . . . . . . . . . . . . 3.9
"Offer Period" . . . . . . . . . . . . 3.9
"Paying Agent" . . . . . . . . . . . . 2.3
"Physical Notes" . . . . . . . . . . . 2.14
"Purchase Date". . . . . . . . . . . . 3.9
"Registrar". . . . . . . . . . . . . . 2.3
"Surviving Entity" . . . . . . . . . . 5.1
Section 1.3 Incorporation by Reference of Trust
Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a
part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the indenture securities means the Company
and any successor obligor.
All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by SEC rule under the TIA have the meanings so assigned
to them.
Section 1.4 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 in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the SEC from time to
time.
ARTICLE II
THE NOTES
Section 2.1 Form and Dating.
The Notes and the related Trustee's certificate of
authentication shall be substantially in the form of Exhibit A
hereto, which is part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issued in fully registered
form, without coupons, in Authorized Denominations.
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.
On the Issue Date, the Notes shall be initially issued
in the form of one or more permanent global Notes, in registered
form (the "Global Notes"), deposited with the Trustee, as
custodian for the Depository. Any Global Note 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, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any
decrease in the amount of Notes represented thereby shall be made
by the Trustee, as custodian for the Depository, as hereinafter
provided.
The Company may issue Accrued Interest Notes in
accordance with the second paragraph of Section 2 of the Notes.
All Accrued Interest Notes so issued shall constitute obligations
of the Company under this Indenture and shall be subject to the
terms and conditions contained herein (except with respect to the
date from which interest shall accrue) as if they were issued on
the Issue Date.
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
reproduced on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under
this Indenture.
The Trustee shall, upon receipt of a Company Order,
authenticate Notes for original issue in the aggregate principal
amount of $73,004,724. The aggregate principal amount of Notes
outstanding at any time may not exceed such amount plus the
principal amount of any Accrued Interest Notes issued pursuant to
the second paragraph of Section 2 of the Notes except as provided
in Section 2.7.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate the Notes. An
authenticating agent may authenticate the 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 or an Affiliate of the Company.
Section 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where
the Notes may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where the Notes
may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of
any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent,
the Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee to act as
the Registrar and Paying Agent.
Section 2.4 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold
in trust for the benefit of Holders or the Trustee all money held
by the Paying Agent for the payment of principal or interest on
the Notes, and will notify the Trustee of any default by the
Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent
for the Notes.
Section 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of all Holders, and the Company and the
Trustee shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the
Trustee, at least five Business Days before each interest payment
date and at such other times as the Trustee may reasonably
request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of
the Holders.
Section 2.6 Transfer and Exchange.
When Notes are presented to the Registrar with a
request to register the transfer or to exchange them for an equal
principal amount of Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met. To
permit registrations of transfer and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the
Registrar's request. No service charge to the Holder shall be
made for any registration of transfer or exchange, but the
Company or the Trustee may require from the transferring or
exchanging Holder payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar
governmental charges payable upon exchanges pursuant to Section
2.13, 3.6, 4.8, 4.9 or 9.5).
The Registrar shall not be required (A) to register the
transfer of or to exchange Notes during a period beginning at the
opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.7 hereof and ending at the
close of business on the day of selection; or (B) to register the
transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being
redeemed in part; or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding
interest payment date.
Any Holder of a Global Note shall, by acceptance of
such Global Note, agree that transfers of the beneficial
interests in such Global Note may be effected only through a book
entry system maintained by the Holder of such Global Note (or its
agent), and that ownership of a beneficial interest in the Global
Note shall be required to be reflected in a book entry.
Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the Person
in whose name a Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and
interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
All Notes issued upon any transfer or exchange pursuant
to this Section 2.6 will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
Section 2.7 Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if
the Holder claims that a Note held by such Holder 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,
an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Company or Trustee may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.8 Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, and those described in
this Section 2.8 as not outstanding. Except as set forth in
Section 2.9 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the
Note.
If a Note is replaced pursuant to Section 2.7 hereof,
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to
accrue.
Section 2.9 Treasury Notes.
(a) In determining whether the Holders of the
required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or by
any Subsidiary thereof or by any other Affiliate controlled by
the Company shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so
disregarded.
(b) In determining whether the Holders of the
required principal amount of Notes have (i) directed the time,
method or place of conducting any proceeding for any remedy
available to the Trustee hereunder, or exercising any trust or
power conferred upon the Trustee; (ii) consented to the waiver of
any past Event of Default and its consequences; or (iii)
consented to the postponement of any interest payment, Notes
owned by the Company and Affiliates of the Company other than
Permitted Holders shall be disregarded and considered as though
not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction or consent, only Notes that the Trustee knows are so
owned shall be so disregarded.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes
upon a written order of the Company signed by two Officers of the
Company. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company
considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and
no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and,
unless otherwise directed by the Company, shall destroy canceled
Notes in accordance with its normal practices. If such notes are
destroyed, certification of the destruction of all canceled Notes
shall be delivered to the Company, at the Company's request. The
Company may not issue new Notes to replace Notes that it has paid
or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest. If the Company
defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.1
hereof. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause
to be fixed each such special record date and payment date;
provided, that no such special record date shall be less than 10
days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the
Company shall mail or cause to be mailed to Holders a notice that
states the special record date, the related payment date and the
amount of such interest to be paid.
Section 2.13 CUSIP Number.
The Company in issuing the Notes may use a "CUSIP"
number (or numbers), and if so, the Trustee shall use the CUSIP
number(s) in notices of redemption or exchange as a convenience
to Holders; provided, that any such notice may state that no
representation is made as to the correctness or accuracy of the
CUSIP number(s) printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers
printed on the Notes. The Company will promptly notify in
writing the Trustee of any such CUSIP number used by the Company
in connection with the Notes and any change in such CUSIP number.
Section 2.14 Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered
in the name of the Depository or the nominee of such Depository,
(ii) be delivered to the Trustee as custodian for such Depository
and (iii) bear legends as may be reasonably requested by the
Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect
to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Note, and the
Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the
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 Depository or impair, as between the Depository and its
Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to
transfer in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of beneficial
owners in the Global Notes may be transferred or exchanged for
certificated Notes in registered form in substantially the form
set forth in Exhibit A ("Physical Notes") and interests of
beneficial owners in Physical Notes may be transferred or
exchanged for Global Notes, in each case, in accordance with the
rules and procedures of the Depository. In addition, Physical
Notes shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Notes if (i) the
Depository notifies the Company that it is unwilling or unable to
continue as Depository for any Global Note and a successor
depositary is not appointed by the Company within 90 days of such
notice, (ii) the Company delivers an Officers' Certificate to the
Trustee stating that the Global Note shall be so exchanged or
(iii) an Event of Default entitling the Holders of the Notes to
accelerate the maturity thereof has occurred and is continuing
and the Registrar has received a written request from the
Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in any Global Note to
beneficial owners pursuant to paragraph (b), the Registrar shall
(if one or more Physical Notes are to be issued) reflect on its
books and records the date and a decrease in the principal amount
of the Global Note in an amount equal to the principal amount of
the beneficial interest in the Global Note to be transferred, and
the Company shall execute, and the Trustee shall upon receipt of
a written order from the Company authenticate and make available
for delivery, one or more Physical Notes of like tenor and
amount.
(d) In connection with the transfer of Global Notes as
an entirety to beneficial owners pursuant to paragraph (b), the
Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner
identified by the Depository in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate
principal amount of Physical Notes of Authorized Denominations.
(e) The Holder of any Global Note may grant proxies
and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this
Indenture or the Notes.
Section 2.15 Wire Payments to Holders.
Notwithstanding any provisions of this Indenture and
the Notes to the contrary, at the request of a Holder, all
payments with respect to any of the Notes held by such Holder,
may be made by the Paying Agent upon receipt from the Company of
immediately available funds prior to 11:30 a.m., New York City
time, on the date such payment is due, directly to the Holder of
such Note in immediately available funds; provided, however, that
no such payment in immediately available funds shall be made to
any Holder under this Section 2.15 unless such Holder has
delivered written instructions to the Trustee prior to the
relevant record date for such payment requesting that such
payment will be so made and designating the bank account to which
such payments shall be so made and in the case of payments of
principal, surrenders the Note to the Trustee in exchange for a
Note or Notes aggregating the same principal amount as the
unredeemed principal amount of the Notes surrendered. The
Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 2.15 unless a
new instruction is delivered prior to the relevant record date
for a payment date. The Company will indemnify and hold the
Trustee harmless against any loss, liability or expense
(including reasonable attorneys' fees and expenses) resulting
from any act or omission to act on the part of the Company or any
such Holder in connection with this Section 2.15 or which the
Paying Agent may incur as a result of making any payment in
accordance with this Section 2.15.
ARTICLE III
REDEMPTION AND PREPAYMENT
Section 3.1 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of the Notes and Section 3.7
hereof, it shall furnish to the Trustee, at least 45 days but not
more than 60 days before a redemption date (unless a shorter
notice shall be satisfactory to the Trustee), an Officer's
Certificate setting forth (i) the redemption date, (ii) the
principal amount of Notes to be redeemed and (iii) the redemption
price.
Section 3.2 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed among the Holders
of the Notes on a pro rata basis, by lot or in accordance with
any other method the Trustee considers fair and appropriate (and
in such manner as complies with applicable legal and stock
exchange requirements, if any).
The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount
thereof to be redeemed. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of Notes selected shall be in
Authorized Denominations; except that if all of the Notes of a
Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not an Authorized Denomination,
shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
Section 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be mailed, by
first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed and
that, after the redemption date upon surrender of such Note, a
new Note or Notes in principal amount equal to the unredeemed
portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the redemption date; and
(g) the Section of this Indenture and/or the Notes
pursuant to which the Notes called for redemption are being
redeemed.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Trustee, at
least 45 days prior to the redemption date (unless a shorter
notice shall be satisfactory to the Trustee), an Officers'
Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.3 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be conditional.
Notice of redemption shall be deemed to be given when
mailed, whether or not the Holder receives such notice. In any
event, failure to give such notice, or any defect therein, shall
not affect the validity of the proceedings for the redemption of
the Notes.
Section 3.5 Deposit of Redemption Price.
On or before the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date other than Notes or
portions thereof called for redemption which have been delivered
by the Company to the Trustee for cancellation. Whichever of the
Trustee or the Paying Agent receiving the money shall promptly
return to the Company any money deposited with it by the Company
in excess of the amounts necessary to pay the redemption price
of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest
shall cease to accrue on the Notes or the portions of Notes
called for redemption. If a Note is redeemed on or after an
interest record date, but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Note was registered at the close
of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in
Section 4.1 hereof.
Section 3.6 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note
surrendered.
Section 3.7 Optional Redemption.
The Notes will be subject to redemption at any time at
the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 days' notice, at a redemption price of
100% of the principal amount then outstanding plus accrued and
unpaid interest thereon to the applicable date of redemption.
Section 3.8 Mandatory Redemption.
Except as set forth under Sections 4.8 and 4.9 hereof,
the Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
Section 3.9 Offers to Purchase by Application of
Excess Proceeds.
In the event that pursuant to Section 4.9 hereof the
Company shall commence an offer to all Holders of Notes to
purchase Notes (an "Asset Sale Offer"), it shall follow the
procedures specified below.
The Asset Sale Offer shall remain open for a period of
20 Business Days following its commencement or such longer period
as may be required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer
Period (the "Purchase Date"), the Company shall purchase the
principal amount of Notes required to be purchased pursuant to
Section 4.9 hereof (the "Offer Amount") or, if less than the
Offer Amount has been tendered, all Notes tendered in response to
the Asset Sale Offer. Payment for any Notes so purchased shall
be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any
accrued and unpaid interest shall be paid to the Person in whose
name a Note is registered at the close of business on such record
date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Asset Sale Offer.
Within 10 days of each date on which the aggregate
amount of Excess Proceeds exceeds $5 million, the Company shall
send, by first class mail, postage prepaid, a notice to the
Trustee and each Holder at the address appearing in the register
maintained by the Registrar of the Notes, which notice shall
specify the Purchase Date, which shall be no earlier than 25 days
nor later than 60 days from the date such notice is mailed. 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 of
Notes. The notice, which shall govern the terms of the Asset
Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant
to this Section 3.9 and Section 4.9 hereof and the length of time
the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to 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 Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to an 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, to the Company, a
depositary if appointed by the Company, or a Paying Agent at the
address specified in the notice prior to the close of business on
the third Business Day before the Purchase Date;
(f) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the
Offer Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such
Holder is withdrawing such Holder's election to have such Note
purchased;
(g) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so
that only Notes in Authorized Denominations shall be purchased);
and
(h) that Holders whose Notes are purchased only in
part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
Notwithstanding anything to the contrary elsewhere
herein, the Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other laws and regulations
thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Notes in connection with
an Asset Sale Offer and the Company will not be deemed to be in
violation of this Section 3.9 or Section 4.9 hereof to the extent
that such compliance conflicts with this Section 3.9 or Section
4.9 hereof.
On the Purchase Date, the Company shall, to the extent
lawful, accept for payment on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Notes (or portions thereof)
tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms
of this Section 3.9. The Company or the Paying Agent, as the case
may be, shall promptly (but in any case not later than five
Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for
purchase, and the Company shall issue, and the Trustee shall
promptly authenticate and mail or deliver a new Note to such
Holder, in a principal amount equal to any unpurchased portion of
the Notes surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the
Asset Sale Offer on the Purchase Date.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Notes.
The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes and this Indenture.
Principal, premium, if any, and interest shall be considered paid
on the date due if the Paying Agent, if other than the Company or
a Subsidiary thereof, holds at least one Business Day before that
date, money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 2% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it
shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the
same rate to the extent lawful.
Section 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan,
City of New York, an office or agency (which may be an office of
the Trustee or an Affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough
of Manhattan, the City of New York for such purposes. The
Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location
of any such other office or agency.
The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company
in accordance with Section 2.3.
Section 4.3 Reports.
Whether or not required by the rules and regulations of
the SEC, so long as any Notes are outstanding, the Company will
furnish to the Holders within 15 days after the date on which it
would have been required to make filings with the SEC (without
regard to any extension that may be permitted by the SEC) (i) all
reports that would be required to be contained in a filing with
the SEC on Forms 10-Q and 10-K (or any successor form) if the
Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," and, with respect to the annual
information only, a report thereon by the Company's certified
independent accountants and (ii) all reports that would be
required to be filed with the SEC on Form 8-K if the Company were
required to file such reports. In addition, whether or not
required by the rules and regulations of the SEC, the Company
will file a copy of all such information and reports with the SEC
for public availability for so long as any Notes are outstanding;
provided, however, that the Company will not be obligated to file
such information or reports if the SEC does not permit or accept
such filings. All such reports shall be filed with the SEC
(unless the SEC will not accept such a filing) and furnished to
the Holders within the time for filing such reports with the SEC
pursuant to the rules and regulations of the SEC (without regard
to any rules or regulations permitting extensions of time to file
such reports). In addition, the Company agrees that, for so long
as at least $20,000,000 in aggregate principal amount of Notes
remain outstanding, it will furnish to the Holders and to
beneficial holders of Notes and to prospective purchasers of
Notes designated by the Holders, upon their request, the
information required to be delivered pursuant to Rule
144(A)(d)(4) under the Securities Act. Upon qualification of the
Indenture under the TIA, the Company shall also comply with TIA
Section 314(a).
Section 4.4 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year, a certificate of the
principal executive officer, the principal financial officer or
the principal accounting officer of the Company stating that a
review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the
supervision of the signing officer with a view to determining
whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to
such officer signing such certificate, that to the best of his or
her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a
Default or Event of Default shall have occurred and is pending,
describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of
his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal
of or interest, if any, on the Notes is prohibited or, if such
event has occurred, a description of the event and what action,
if any, the Company is taking or proposes to take with respect
thereto and listing all redemptions of Notes and Restricted
Payments made during the period covered by the certificate, if
any. For purposes of this Section 4.4(a), such compliance shall
be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
(b) So long as not contrary to the then generally
accepted auditing and accounting standards, the year-end
financial statements delivered pursuant to Section 4.3 above
shall be accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of
established national reputation) that in making the examination
necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that
the Company has violated any provisions of Sections 4.1, 4.5,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18 or 5.1, as
they relate solely to accounting matters or, if any such
violation has occurred and has come to their attention,
specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of
any such violation. It is specifically understood by all parties
that the accountant's examination is not designed primarily
toward obtaining such knowledge.
(c) The Company shall, so long as any of the Notes
are outstanding, deliver to the Trustee, promptly, but in any
case within 3 Business Days of any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying
such Default or Event of Default and what action, if any, the
Company is taking or proposes to take with respect thereto.
Section 4.5 Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are being
contested in good faith and by appropriate proceedings or where
the failure to effect such payment would not have a material
adverse effect on the Company and its Subsidiaries taken as a
whole.
Section 4.6 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, that may
affect the covenants, or the performance, of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such
power as though no such law has been enacted.
Section 4.7 Corporate Existence.
Subject to Article Five and Section 4.17 hereof, the
Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect
to the Holders; and provided, further, that this Section 4.7
shall not apply to any Subsidiary after its corporate existence
is terminated or it otherwise ceases to be a Subsidiary of the
Company in accordance with the provisions hereof.
Section 4.8 Change of Control.
(a) Upon the occurrence of a Change of Control (the
date of such occurrence being the "Change of Control Date"), each
Holder will have the right to require the Company to repurchase
all or any part (equal to an Authorized Denomination) of such
Holder's Notes pursuant to the offer described in paragraph (b)
below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase (the
"Change of Control Payment").
(b) Within 30 days following the Change of Control
Date, the Company will send, by first-class mail, postage
prepaid, a notice to the Trustee and to each Holder at the
address appearing in the register maintained by the Registrar of
the Notes stating:
(1) that the Change of Control Offer is being
made pursuant to this Section 4.8 and that all Notes tendered
will be accepted for payment;
(2) the purchase price and the purchase date,
which will be no earlier than 30 days nor later than 60 days from
the date such notice is mailed (the "Change of Control Payment
Date");
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer will cease to
accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes
purchased pursuant to a Change of Control offer will be required
to surrender the Notes, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Notes completed, to the
Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day preceding the Change
of Control Payment Date;
(6) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than the
close of business on the third Business Day preceding the Change
of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing such Holder's election to have
such Notes and
(7) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered.
(c) Notwithstanding anything to the contrary elsewhere
herein, the Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other laws and regulations
thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Notes in connection with
a Change of Control Offer and the Company will be deemed not to
be in violation of this Section 4.8 to the extent that such
compliance conflicts with this Section 4.8.
(d) If the Change of Control Payment Date is on or
after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest shall be
paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest
shall be payable to Holders who tender pursuant to the Change of
Control Offer.
(e) On the Change of Control Payment Date, the Company
shall (1) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3)
deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the Notes
or portions thereof tendered to the Company. The Paying Agent
shall promptly mail to each Holder of Notes so accepted the
Change of Control Payment for such Notes, and the Company shall
issue, and the Trustee shall promptly authenticate and mail or
deliver to each Holder, a new Note in principal amount equal to
any unpurchased portion of the Notes surrendered, if any;
provided, that each such new Note shall be in an Authorized
Denomination. Any Note 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.
Section 4.9 Limitation on Asset Sales.
The Company shall not, and shall not permit any of its
Subsidiaries to, consummate any Asset Sale, unless (i) the
Company (or the Subsidiary, as the case may be) receives
consideration at the time of such sale or other disposition at
least equal to the Fair Market Value thereof; (ii) not less than
85% of the consideration received by the Company (or its
Subsidiaries, as the case may be) 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 Subsidiary's most
recent balance sheet or in the notes thereto) of the Company or
any Subsidiary (other than liabilities that are by their terms
subordinated to the Notes) that are assumed by the transferee of
any such assets with the effect that none of the Company or any
of its Subsidiaries will have any obligation with respect to such
liabilities following such assumption by the transferee, (b) any
notes or other obligations received by the Company or its
Subsidiaries from such transferee that are converted by the
Company or such Subsidiary into cash within 90 days following
receipt (to the extent of the cash received) and (c) any
Marketable Securities received by the Company or its Subsidiaries
from such transferee that are converted by the Company or such
Subsidiary into cash within 90 days following receipt (to the
extent of the cash received), shall be deemed to be cash for
purposes of this clause (ii); and (iii) the Net Cash Proceeds
received by the Company (or its Subsidiaries, as the case may be)
from such Asset Sale are applied in accordance with the following
paragraphs of this Section 4.9.
The Company may, (i) within 60 days following the
receipt of Net Cash Proceeds from any Asset Sale, apply such Net
Cash Proceeds to the repayment of Indebtedness of the Company
under the Bank Revolving Credit Facility and to cash
collateralize letters of credit outstanding thereunder, in each
case to the extent required by (A) the terms of the Bank
Revolving Credit Facility as in effect on the Issue Date in
connection with an Asset Sale not prohibited by the Bank
Revolving Credit Facility as in effect on the Issue Date, or (B)
the terms of a consent granted by the Lenders thereunder to an
Asset Sale prohibited by the Bank Revolving Credit Facility as in
effect on the Issue Date; provided, that (x) any such repayment
of Indebtedness shall result in a permanent reduction in the
revolving credit or other commitment relating thereto in an
amount equal to the principal amount so repaid, and (y) at such
time as any such letters of credit are no longer required to be
cash collateralized, any such cash collateralization shall be (1)
utilized to repay Indebtedness under the Bank Revolving Credit
Facility which repayment shall result in a permanent reduction in
the revolving credit or other commitment relating thereto in an
amount equal to the principal amount so repaid or (2) released to
the Company and applied as Excess Proceeds in accordance with the
following paragraph; or (ii) within 180 days following the
receipt of Net Cash Proceeds from any such Asset Sale, apply such
Net Cash Proceeds or commit pursuant to a definitive contract to
apply such Net Cash Proceeds within 60 days to make an investment
in a Related Business.
Notwithstanding the foregoing, to the extent that any
or all of the Net Cash Proceeds of any Asset Sale is prohibited
or delayed by applicable local law from being repatriated to the
United States, the portion of such Net Cash Proceeds so affected
will not be required to be applied pursuant to this covenant but
may be retained for so long, but only for so long, as the
applicable local law will not permit repatriation to the United
States. The Company agrees to promptly take all reasonable
actions required by the applicable local law to permit such
repatriation, and once such repatriation of any affected Net Cash
Proceeds is permitted under applicable local law, such
repatriation will be immediately effected and such repatriated
Net Cash Proceeds will be applied in the manner set forth in this
covenant as if such Asset Sale had occurred on the date of
repatriation.
If, upon completion of the applicable period, any
portion of the Net Cash Proceeds of any Asset Sale shall not have
been applied by the Company as described in clause (i) or (ii)
above (the "Excess Proceeds") and such Excess Proceeds, together
with any remaining unapplied Excess Proceeds from any prior Asset
Sale, exceed $5 million, then the Company will make an offer to
repurchase the Notes pursuant to Section 3.9 (on a pro rata basis
if the amount available for such repurchase is less than the
outstanding principal amount of the Notes plus accrued and unpaid
interest, if any, to the date of repurchase) at a purchase price
of 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase. If the aggregate
principal amount of Notes surrendered by Holders thereof plus
accrued and unpaid interest, if any, exceeds the amount of Excess
Proceeds, the Company shall select the Notes to be purchased on a
pro rata basis. If the aggregate principal amount of Notes
surrendered by Holders thereof in any Asset Sale Offer plus
accrued and unpaid interest, if any, is less than the amount of
Excess Proceeds, the unused portion of such Excess Proceeds may
be used by the Company for general corporate purposes. Upon
completion of an Asset Sale Offer, the amount of Excess Proceeds
shall be reset to zero.
Pending application pursuant to the above paragraphs,
including to the extent unapplied Excess Proceeds do not exceed
$5 million, Net Cash Proceeds shall be either invested in Cash
Equivalents or remitted to the applicable lender to pay down any
Indebtedness outstanding under the Bank Revolving Credit Facility
(which pay down may but need not result in a permanent reduction
in the revolving credit or other commitment relating thereto).
Section 4.10 Limitation on Restricted Payments.
The Company shall not, and shall cause each of its
Subsidiaries not to, directly or indirectly, make any Restricted
Payment unless:
(i) no Default or Event of Default shall have occurred
and be continuing at the time of or immediately after giving
effect to such Restricted Payment;
(ii) at the time of and immediately after giving effect
to such Restricted Payment, at least $1.00 of additional
Indebtedness could be incurred pursuant to Section 4.11(a)(i)
hereof; and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments
declared or made after the Issue Date does not exceed the sum of
(a) 50% of the Adjusted Net Income of the Company (or in the
event such Adjusted Net Income shall be a deficit, minus 100% of
such deficit) during the period (treated as one accounting
period) from the Issuance Date and ending on the last day of the
fiscal quarter immediately preceding the date of declaration or
making of such Restricted Payment; plus (b) 100% of the aggregate
Net Equity Proceeds received by the Company from the issue or
sale, after the Issuance Date, of Capital Stock of the Company
(other than Net Equity Proceeds from (1) the issue or sale of
Disqualified Stock or Capital Stock of the Company to any
Subsidiary of the Company and (2) any Net Equity Proceeds
received from issuances and sales financed directly or indirectly
using funds borrowed from the Company, until and to the extent
such borrowing is repaid) and any Indebtedness or other
securities of the Company (other than the issue or sale to any
Subsidiary of the Company) convertible into or exercisable for
Qualified Capital Stock of the Company which has been so
converted or exercised (to the extent the conversion or exercise
price has been paid in cash), as the case may be, or as a capital
contribution; plus (c) $2.5 million.
Notwithstanding the foregoing, the above limitations will not
prevent:
A. the payment of any dividend within 60 days after
the date of declaration thereof, if at such date of declaration
such payment complied with the provisions hereof;
B. the purchase, redemption, acquisition or
retirement of any shares of Capital Stock of the Company in
exchange for, or out of the net proceeds of the substantially
concurrent sale of, shares of Qualified Capital Stock of the
Company (other than to a Subsidiary of the Company and excluding
any such net proceeds received from issuances and sales financed
directly or indirectly using funds borrowed from the Company,
until and to the extent such borrowing is repaid);
provided, however, that such proceeds are not included
in clause (b) of paragraph (iii) above; or
C. the redemption or retirement of Indebtedness of
the Company which is subordinate in right of payment to the
Notes, in exchange for, by conversion into, or out of the net
proceeds of the substantially concurrent issue or sale of
Qualified Capital Stock of the Company (other than to a
Subsidiary of the Company and excluding any such net proceeds
received from issuances and sales financed directly or indirectly
using funds borrowed from the Company, until and to the extent
such borrowing is repaid) or Permitted Refinancing Indebtedness;
provided, however, that such proceeds are not included in clause
(b) of paragraph (iii) above;
provided, that no Default or Event of Default has occurred and is
continuing at the time, or shall occur under any provision of
this Indenture other than this Section 4.10 as a result of any of
the actions contemplated in clauses (A) through (C) above. In
determining the amount of Restricted Payments permissible under
clause (iii) above, amounts expended pursuant to clause (A) above
shall be included, without duplication, as Restricted Payments.
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 were computed, which calculations may be based upon
the Company's latest available financial statements.
Section 4.11 Limitation on Incurrence of Indebtedness;
Issuance of Capital Stock.
(a) The Company will not, and will not permit any
Subsidiary to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) other than Permitted
Indebtedness.
Notwithstanding the foregoing, the Company or any
Subsidiary may incur Indebtedness (including Acquired
Indebtedness) if (i) at the time of such incurrence, the Fixed
Charge Coverage Ratio of the Company for the period of the four
consecutive fiscal quarters then ended immediately prior to such
incurrence, taken as one period and calculated on a pro forma
basis as if such Indebtedness had been incurred and the proceeds
therefrom applied on the first day of such four-quarter period
and, in the case of Acquired Indebtedness, as if the related
acquisition (whether by means of purchase, merger or otherwise)
also had occurred on such date with the appropriate adjustments
with respect to such acquisition being included in such pro forma
calculation, would have been, not less than 1.75 to 1 if such
Indebtedness is incurred on or prior to the first anniversary of
the Issue Date; 1.9 to 1 if such Indebtedness is incurred after
the first but on or prior to the second anniversary of the Issue
Date; and 2.0 to 1 if such Indebtedness is incurred after the
second anniversary of the Issue Date and (ii) no Default or Event
of Default shall have occurred and be continuing at the time or
as a consequence of the incurrence of such Indebtedness;
provided, however, that in the case of Indebtedness incurred that
is subordinated to the Notes, such indebtedness has no scheduled
principal payments prior to the day following the first
anniversary of the Maturity Date of the Notes.
(b) The Company will not incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness
that is subordinate or junior in right of payment to any other
Indebtedness unless such Indebtedness is also expressly
subordinated to the Notes to the same extent as such other
Indebtedness; provided, however, that the foregoing limitation
will not apply to distinctions between categories of Indebtedness
that exist by reason of any Liens arising or created in respect
of some but not all such Indebtedness.
(c) The Company will not permit any of its
Subsidiaries to issue any Capital Stock (other than to the
Company or to a Wholly Owned Subsidiary of the Company). The
Company will not issue Disqualified Stock.
Section 4.12 Limitation on Liens.
The Company shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind (other
than Permitted Liens) upon any property or assets of the Company
or of any Subsidiary of the Company, now owned or hereafter
acquired, unless all payments due under this Indenture and the
Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligations are no
longer secured by a Lien; provided, that if the Indebtedness
secured by such Lien is subordinate or junior in right of payment
to the Notes then the Lien securing such Indebtedness shall be
subordinate or junior in priority to the Lien securing the Notes
at least to the same extent as such Indebtedness is subordinate
or junior to the Notes.
If at any time the Company or any of its Subsidiaries
shall incur any Lien requiring that the Notes be equally and
ratably secured pursuant to this Section 4.12, the Company shall
promptly deliver to the Trustee an Officers' Certificate, stating
that such covenant has been complied with, and an Opinion of
Counsel, stating that in such counsel's opinion such covenant has
been complied with and that any instruments executed by the
Company or any Subsidiary in their performance of such covenant
complied with the requirements thereof.
Section 4.13 Limitation on Dividend and
Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary of
the Company to (i) pay dividends or make any other distributions
on its Capital Stock, or any other interest or participation in
or measured by its profits, owned by the Company or a Subsidiary;
(ii) pay any Indebtedness owed to the Company or a Subsidiary of
the Company; (iii) make loans or advances to the Company or a
Subsidiary of the Company or Guarantee Indebtedness of the
Company or a Subsidiary; or (iv) transfer any of its properties
or assets to the Company or a Subsidiary of the Company, except
for (a) restrictions contained in the Bank Credit Facility as in
effect on the Issue Date; (b) restrictions contained in the
by-laws of SPA as in effect on the Issue Date; (c) consensual
encumbrances binding upon any Person at the time such Person
becomes a Subsidiary of the Company (unless the agreement
creating such consensual encumbrance was entered into in
connection with, or in contemplation of, such entity becoming a
Subsidiary); (d) consensual encumbrances or restrictions under
any agreement that refinances or replaces any agreement described
in clauses (a) or (b) above; provided, that the terms and
conditions of any such restrictions are no less favorable to the
Holders than those under the agreement so refinanced or replaced;
(e) customary nonassignment provisions in leases, purchase money
financings and any encumbrance or restriction due to applicable
law; (f) restrictions imposed by law; (g) restrictions imposed on
a Subsidiary pursuant to a bona fide contract for disposition of
all or substantially all of the assets or 100% of the Capital
Stock of such Subsidiary by the Company; (h) restrictions on the
transfer of assets subject to Liens permitted by this Indenture;
and (i) restrictions imposed by the indenture relating to the RII
Notes.
Section 4.14 Limitation on Transactions with
Affiliates.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into any
transaction or series of transactions with any Affiliate, any
Xxxx Associate or holder of 10% or more of the Company's or any
Subsidiary's common stock (other than with the Company or a
Wholly Owned Subsidiary of the Company) (an "Affiliate
Transaction"), on terms that are less favorable to the Company or
such Subsidiary, as the case may be, than would be available in a
comparable transaction negotiated on an arm's-length basis with
an unrelated Person. In addition, the Company will not, and will
not permit any Subsidiary of the Company to, enter into an
Affiliate Transaction, or any series of related Affiliate
Transactions, unless (i) with respect to such Affiliate
Transaction or Transactions involving or having a value of more
than $1 million, the Company has obtained the approval of a
majority of the Board of Directors of the Company (including a
majority of the Company's disinterested directors) and (ii) with
respect to such Affiliate Transaction or Transactions involving
or having a value of more than $5 million or as to which there
are no disinterested directors, the Company has delivered to the
Trustee an opinion of an independent investment banking firm or
appraisal firm of national standing to the effect that such
Affiliate Transaction or Transactions are fair to the Company or
such Subsidiary, as the case may be, from a financial point of
view.
The foregoing shall not prohibit (i) the Employment
Agreements, the Consulting Agreements, the Employment Agreement
Guarantees, the Fenchurch Note and the Arrangement Fee Note, (ii)
the Tax Allocation Agreements, (iii) any dividends or other
distribution permitted to be paid pursuant to Section 4.10, (iv)
loans or advances to employees in the ordinary course of business
consistent with past practice up to a maximum of $25,000 per
employee and up to a maximum of $150,000 in the aggregate at any
one time outstanding, (v) the payment of reasonable fees to
directors of the Company who are not employees of the Company or
of any of its Subsidiaries or (vi) reasonable and customary
indemnification arrangements between the Company or any of its
Subsidiaries and their respective directors and officers pursuant
to which the Company or any such Subsidiary agrees to indemnify
such directors and officers against losses and expenses incurred
by such directors and officers in connection with their service
to the Company or such Subsidiary, as the case may be (to the
extent such indemnification arrangements are permitted under
applicable law).
Section 4.15 Limitation on Sale and Leaseback
Transactions.
Except to the extent included in clause (vii) of the
definition of Permitted Indebtedness, the Company will not, and
will not permit any of its Subsidiaries to, enter into, renew or
extend any sale and leaseback transaction with respect to any
property (whether now owned or hereafter acquired) unless (i) the
consideration received upon any such sale or transfer of the
property to be leased is applied in accordance with the
requirements of Section 4.9 hereof and (ii) the Company or such
Subsidiary would be entitled pursuant to Section 4.11(a) hereof
to incur additional Indebtedness in an amount at least equal to
the Attributable Debt in respect of such sale and leaseback
transaction.
Section 4.16 Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any other
government, governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective
businesses and the ownership of their respective properties,
except such as are being contested in good faith and by
appropriate proceedings and except for such noncompliance as
would not in the aggregate have a material adverse effect on the
financial condition or results of operations of the Company and
its Subsidiaries taken as a whole.
Section 4.17 Limitation on Sale of Capital Stock of
Subsidiaries.
The Company will not, and will not permit any of its
Subsidiaries to, sell, pledge, hypothecate or otherwise convey or
dispose of any Capital Stock of the Company's Subsidiaries other
than (i) the pledge of the stock of RBI and all of its
Subsidiaries pursuant to the Bank Revolving Credit Facility; (ii)
the sale of 100% of the Capital Stock of any other Subsidiary
owned collectively by the Company and/or its Subsidiaries;
provided, that such sale complies with the requirements of
Section 4.9; and (iii) sales of Capital Stock of a Subsidiary of
the Company to a Wholly Owned Subsidiary.
Section 4.18 Payments for Consents.
Neither the Company nor any of its 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 Note for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this
Indenture or the Notes, unless such 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
solicitation documents relating to such consent, waiver or
agreement.
Section 4.19 Maintenance of Properties, etc.
The Company shall, and shall cause each of its
Subsidiaries to, maintain its Properties in normal working order
and condition and make all necessary repairs, renewals,
replacements, additions and improvement thereto, ordinary wear
and tear excepted, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith
may be conducted at all times; provided, that nothing in this
Section 4.19 shall prevent the Company or any of its Subsidiaries
from discontinuing the operation, use and maintenance of any of
its Properties if such discontinuance is, in the judgment of the
Company or such Subsidiary, desirable in the conduct of its
business.
The Company shall, and shall cause each of its
Subsidiaries to, maintain with insurers which the Company
believes in good faith to be financially sound and reputable such
insurance as may be required by law and such other insurance (or
self- insurance), to such extent and against such hazards and
liabilities as it in good faith determines is customarily
maintained by companies similarly situated with like properties.
Section 4.20 Additional Interest.
(a) Subject to Section 4.20(b) below, if all of
the issued and outstanding Notes have not been redeemed in full
as of the second, third, fourth, fifth, sixth or seventh
anniversary of the Additional Interest Calculation Date, the
Company will pay additional interest ("Additional Interest") on
the Notes in the form of Class B Common Stock by issuing and
delivering within five days following each such anniversary to
the Class B Voting Trustee, to hold pursuant to the terms of the
Voting Trust Agreement on behalf of the Holders, the number of
shares of Class B Common Stock that, on such anniversary date,
together with the Class B Common Stock issued to the New Equity
Holders on the effective date of the Consensual Plan, will result
in the New Equity Holders holding the aggregate percentage of
fully-diluted Common Stock (the "Noteholder Equity Interest") set
forth in the following schedule (the "Additional Interest
Schedule"):
Anniversary of Additional Noteholder
Interest Calculation Date Equity Interest
Second . . . . . . . . . . . . . 30%
Third. . . . . . . . . . . . . . 40%
Fourth . . . . . . . . . . . . . 55%
Fifth. . . . . . . . . . . . . . 70%
Sixth. . . . . . . . . . . . . . 80%
Seventh. . . . . . . . . . . . . 85%
(b) Notwithstanding the foregoing, if as of any
anniversary of the Additional Interest Calculation Date set forth
above, all interest from and after the Additional Interest
Calculation Date to such anniversary and all interest accrued
through such anniversary on the Notes shall have been paid in
full, in cash, then the amount of Additional Interest payable on
such anniversary and each anniversary thereafter in the
Additional Interest Schedule shall be reduced such that the
Noteholder Equity Interest for such anniversary and each
anniversary thereafter set forth in the Additional Interest
Schedule shall be reduced by 1/2% for each 1% of the original
principal amount of the Notes properly redeemed by the Company
prior to such anniversary of the Additional Interest Calculation
Date. For the purposes of this paragraph 4.20(b), if the Company
shall have redeemed in cash Notes in an aggregate principal
amount equal to the aggregate principal amount of all Accrued
Interest Notes issued since the Additional Interest Calculation
Date, the interest payment in respect of which such Accrued
Interest Notes were issued shall be deemed to have been paid in
cash. For example, if between the second and third anniversaries
of the Additional Interest Calculation Date, 10% of the original
principal amount of the Notes is properly redeemed and all
interest on the Notes has been paid in cash or the Company has
redeemed an additional principal amount of Notes equal to the
aggregate principal amount of all Accrued Interest Notes issued
since the Additional Interest Calculation Date, the Additional
Interest Schedule would be reduced such that the Noteholder
Equity Interest on the third, fourth, fifth, sixth and seventh
anniversary dates of the Additional Interest Calculation Date
would be 35%, 50%, 65%, 75% and 80%, respectively (reflecting a
5% reduction). The Company shall promptly deliver to the Trustee
and to each Noteholder (i) an Officers' Certificate, stating (i)
the reduction of Additional Interest, if any, to be paid in
compliance with this Section 4.20(b) and (ii) whether the Company
has complied with this Section 4.20(b), or, if the Company has
not complied with this Section 4.20(b), the Additional Interest,
if any to be reduced to so comply. Such Officers' Certificate
shall set forth an Additional Interest Schedule revised to give
effect to the reduction called for by this Section 4.20(b).
(c) The obligations of the Company under this
Section 4.20 to pay Additional Interest shall be secured by the
non-recourse pledge of the Pledged Collateral as set forth in
Article Ten. In the event that the Company fails to perform its
obligation to pay Additional Interest pursuant to this Section
4.20 and such failure remains uncured for five days (an
"Additional Interest Default"), the Trustee shall exercise its
rights under the Non-Recourse Pledge Agreement for the benefit of
the Holders solely with respect to the number of shares of Common
Stock included in the Pledged Collateral that will increase the
Noteholder Equity Interest to the amount set forth on the
Additional Interest Schedule that would have resulted had the
Additional Interest Default not occurred and all dividends and
distributions made or with respect to such shares of Common Stock
other than cash dividends and distributions which the Pledgors
are permitted to retain pursuant to the Non-Recourse Pledge
Agreement. In no event will the holders of the Notes have the
right to any assets of the Hypothecators other than the Pledged
Collateral.
(d) Notwithstanding anything herein to the
contrary, upon the occurrence of an Event of Default specified in
Section 6.1(vii)(a) - 6.1(vii)(f) or Section 6.1(viii), in each
case at a time when the Noteholder Equity Interest is 50% or
less, the Hypothecators shall be jointly and severally obligated
to transfer to the Trustee for the benefit of the Holders that
portion of Pledged Collateral that will increase the Noteholder
Equity Interest to 51% (the "Additional Default Interest").
(e) Upon the incurrence of any obligation to
issue or transfer Common Stock pursuant to paragraphs (a), (c) or
(d) of this Section 4.20, the Company shall provide the Trustee
with an Officers' Certificate stating that such obligation has
arisen under this Section 4.20(a), (c) or (d) and the actions to
be taken by the Company in compliance therewith, containing such
information as the Trustee may reasonably request (including,
without limitation, the number of shares of Common Stock to be
issued and the names and denominations of such Common Stock with
respect to each Holder). Upon completion of any issuance or
transfer pursuant to paragraphs (a), (c) or (d) of this Section
4.20, the Company shall deliver to the Trustee an Officers'
Certificate indicating the actions taken by the Company in
connection with such issuance or transfer (including, without
limitation, the number of shares and source of the Common Stock
so issued or transferred) and that the conditions of this Section
4.20 have been complied with. Upon the Trustee's receipt of any
shares of Class A Common Stock in connection with this Section
4.20, Article Ten or the Non-Recourse Pledge Agreement, the
Trustee shall deliver this Class A Common Stock to the Company
and the Company shall exchange such shares of Class A Common
Stock for Class B Common Stock, if possible, and shall distribute
such shares of Class B Common Stock or Retained Class A Shares,
as the case may be, to the Class B Voting Trustee to hold
pursuant to the terms of the Voting Trust Agreement for the
benefit of the Holders listed in the register maintained by the
Registrar as of the date of the Additional Interest Default pro
rata (with such adjustments as may be deemed appropriate by the
Trustee to avoid fractional shares). The Company agrees to give
immediate effect to such exchange, if possible, and issue
certificates for such Class B Common Stock and to use its best
efforts to cause such Class B Common Stock or Retained Class A
Shares, as the case may be, to be distributed to the Class B
Voting Trustee.
(f) The Company shall at all times reserve and
keep available, free of pre-emptive rights, out of its authorized
Class B Common Stock, solely for the purpose of issue and
delivery pursuant to this Section 4.20, as provided herein, the
maximum number of shares of Class B Common Stock that may be
issuable or deliverable pursuant to this Section 4.20. Such
shares shall, when issued or delivered in accordance with this
Section 4.20, be duly and validly issued and fully paid and
non-assessable and free from all taxes, liens and charges.
(g) The Company covenants that if any shares of
Common Stock to be issued and delivered hereunder require
registration with or approval of any governmental authority under
any federal or state law before such shares may be validly issued
and delivered, the Company will in good faith and as
expeditiously as possible endeavor to secure such registration or
approval, as the case may be. The shares of Common Stock issued
and delivered to the Trustee shall, subject to the Voting Trust
Agreement and the Stockholders Agreement, be freely tradeable
without restriction thereunder, except in the case of shares of
Common Stock held by an Affiliate of the Company. The
Hypothecators shall use their best efforts to assist the Company
in connection with any such registration or approval, but it
shall not have any obligation to effect any such registration or
approval or incur any expense related thereto. Any such expense
shall be borne by the Company.
(h) Issuance and delivery of shares of Common
Stock pursuant to this Section 4.20 or the Non-Recourse Pledge
Agreement shall be made without charge to the Trustee, the
Holders or the Class B Voting Trustee for any issue or transfer
tax, or other incidental expense, in respect of the issuance or
delivery of such shares, all of which taxes and expenses shall be
paid by the Company and in no event will any Hypothecator be
liable for any such taxes and expenses.
(i) If at any time the Common Stock shall be
listed on the Nasdaq National Market System, the New York Stock
Exchange or any other national securities exchange or automated
quotation system the Company will, if permitted by the rules of
such exchange or automated quotation system, list and keep
listed, so long as the Common Stock shall be so listed on such
exchange or automated quotation system, all Common Stock issuable
hereunder; provided, however, that if the rules of such exchange
or automated quotation system permit the Company to defer the
listing of such Common Stock until the first issuance of Common
Stock in accordance with the provisions of this Section 4.20, the
Company may list such Common Stock issuable pursuant to this
Section 4.20 in accordance with the requirements of such exchange
or automated quotation system at such time.
(j) If, following the payment of Additional
Interest or Additional Default Interest, the Company shall, at
any time or from time to time, (i) declare a dividend on the
Common Stock payable in capital stock (including shares of Common
Stock), (ii) subdivide, split or otherwise reclassify the
outstanding Common Stock, (iii) combine, split or otherwise
reclassify the outstanding Common Stock into a smaller number of
shares, (iv) issue any shares of its capital stock in a
reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in
which the Company is the continuing corporation) or (v) take any
other similar action, then in each such case, the Company shall,
within 15 days of the effective date of such action, issue and
deliver to the Class B Voting Trustee to hold pursuant to the
terms of the Voting Trust Agreement for the benefit of the
Holders that number of shares of Common Stock that will restore
the Noteholder Equity Interest to the level in effect prior to
such action. Any shares of Common Stock received by a
Hypothecator as a result of such action by the Company shall
immediately become Pledged Collateral and shall be delivered to
the Trustee to the extent provided herein or in the Non-Recourse
Pledge Agreement. Such adjustments shall be made successively
whenever any action described in this paragraph shall occur.
(k) For each share of Class B Common Stock due to
be issued pursuant to this Section 4.20, the Company shall be
obligated to pay additional cash interest to the persons to whom
said shares are to be issued in an amount equal to the aggregate
par value of the Class B Common Stock to be so issued. In
exchange for the issuance of said shares to such persons, said
additional cash interest due shall be deemed to have been
satisfied and shall no longer be payable.
ARTICLE V
SUCCESSORS
Section 5.1 Limitation on Mergers,
Consolidations and Sales of Assets.
The Company will not consolidate with or merge with or
into any other Person, or permit any other Person to consolidate
or merge with or into the Company, nor will the Company sell,
lease, convey or otherwise dispose of all or substantially all of
its assets, in a single transaction or a series of transactions,
unless (i) the entity formed by or surviving any such
consolidation or merger, or to which such sale, lease, conveyance
or other sale shall have been made (the "Surviving Entity"), is a
corporation organized and existing under the laws of the United
States, any state thereof, or the District of Columbia; (ii) if
the Company is not the Surviving Entity, the Surviving Entity
assumes by supplemental indenture all of the obligations of the
Company under the Notes and this Indenture; (iii) immediately
after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; (iv) immediately
after giving effect to such transaction (but prior to any
purchase accounting adjustments resulting from the transaction),
the Consolidated Net Worth of the Surviving Entity would be at
least equal to the Consolidated Net Worth of the Company
immediately prior to such transaction; and (v) immediately after
giving effect to such transaction, the Surviving Entity could
incur at least $1.00 of additional Indebtedness pursuant to
Section 4.11(a); provided, that the Consolidated Fixed Charge
Coverage Ratio of such Surviving Entity shall be determined on a
pro forma basis giving effect to both the Consolidated Fixed
Charges and the Consolidated Cash Flow of the Person merging with
or into or consolidated with the Company or any of its
Subsidiaries, as the case may be, or to whom the Company or any
of its Subsidiaries, as the case may be, has sold, leased or
conveyed all or substantially all of its assets.
Notwithstanding the foregoing, the Company shall not
merge or consolidate with or into (or sell substantially all of
its assets to) RII and RII shall not merge or consolidate with or
into (or sell substantially all of its assets to) RBI. Except as
provided in the immediately preceding sentence, the Company or
any of its Wholly-Owned Subsidiaries, as the case may be, may
merge or consolidate with or into the Company or a Wholly-Owned
Subsidiary or sell substantially all of the assets of a
Subsidiary to the Company or any Wholly-Owned Subsidiary.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate
to the foregoing effect, an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with
this Section 5.1 and an Accountants' Certificate setting forth
the computations necessary to confirm the satisfaction of the
conditions set forth in clauses (iv) and (v) of this Section 5.1
and certifying the accuracy thereof. The Trustee shall be
entitled to rely conclusively upon such Officers' Certificate,
Opinion of Counsel and Accountants' Certificate.
Section 5.2 Successor Corporation Substituted.
Upon any consolidation or merger involving the Company,
or any sale, 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 (if not the
Company) formed by such consolidation or with which the Company
is merged or to which such sale, 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 and the Notes 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. When a successor corporation
assumes all of the obligations of the Company hereunder and under
the Notes and agrees to be bound hereby and thereby, the
predecessor Company shall be released from such obligations.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
An "Event of Default" shall occur upon:
(i) failure by the Company to pay interest on the
Notes for 30 days after becoming due;
(ii) failure by the Company to pay the principal
of or premium (if any) on the Notes, whether at maturity or upon
acceleration, redemption or otherwise (including the failure to
repurchase the Notes tendered pursuant to a Change of Control
Offer or an Asset Sale Offer);
(iii) failure by the Company or any of its
Subsidiaries to comply with the provisions of Section 4.8, 4.9 or
5.1 of this Indenture;
(iv) the failure of the Company to comply with any
of its covenants or the breach by the Company of any of its
representations or warranties in any material respect under the
Restructuring Agreement as of the Additional Interest Calculation
Date or failure by the Company or any of its Subsidiaries to
comply with any of its covenants or the breach by the Company
or any of its Subsidiaries of any of its representations or
warranties in any material respect hereunder (other than a breach
of a covenant, representation or warranty which is specifically
provided for elsewhere in this Section 6.1) for 30 days after
written notice specifying the failure and that the same is a
Default shall have been given to the Company by the Trustee or
Holders of 25% in principal amount of the Notes outstanding;
(v) default or defaults, including a payment
default, (after giving effect to all applicable grace periods)
under one or more agreements, instruments, mortgages, bonds,
debentures or other evidences of Indebtedness under which the
Company or any of its Subsidiaries has an aggregate outstanding
principal amount of Indebtedness in excess of $5 million for all
such issues of all such Persons and either (x) such Indebtedness
is already due and payable in full or (y) such default or
defaults have resulted in the acceleration of the maturity
of such Indebtedness;
(vi) any final judgment or order (not covered by
insurance) is entered against the Company or any Subsidiary in
excess of $5 million either individually or in the aggregate for
all such final judgments or orders against all such Persons and
remains undischarged or unstayed for 60 days;
(vii) the Company or any of its Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or
proceeding,
(b) consents to the entry of a judgment,
decree or order for relief against it in an involuntary case or
proceeding,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of its property,
(d) consents to the institution of a
bankruptcy or an insolvency proceeding against it,
(e) makes a general assignment for the
benefit of its creditors,
(f) takes any corporate action to authorize
or effect any of the foregoing; or
(g) generally is not able to pay its debts
as they become due;
(viii) a court of competent jurisdiction enters a
judgment, decree or order under any Bankruptcy Law that is for
relief against the Company or any Significant Subsidiary of the
Company, in an involuntary case or proceeding which shall:
(a) approve a petition seeking
reorganization, arrangement, adjustment or composition in respect
of the Company or any Subsidiary of the Company,
(b) appoint a Custodian for the Company of
any Subsidiary of the Company or for all or substantially all of
the property of any of them, or
(c) order the winding-up or liquidation of
the Company or any Subsidiary of the Company, and in each case
the judgment, order or decree remains unstayed and in effect for
60 days;
(ix) failure by any Hypothecator to comply with
any of its covenants or the breach by any Hypothecator of any of
its representations or warranties under the Non-Recourse Pledge
Agreement for 30 days (or for six months only with respect to
Section 4(b) of the Non-Recourse Pledge Agreement) after written
notice specifying the failure and that the same is a Default
shall have been given to the Company by the Trustee or Holders of
25% in principal amount of the Notes outstanding; or
(x) any Lien granted or purported to be granted
pursuant to the Non-Recourse Pledge Agreement shall be or become
unenforceable or invalid, or the priority thereof shall become
diminished, or any Hypothecator shall contest or disaffirm any
such Lien.
Section 6.2 Acceleration.
If an Event of Default occurs and is continuing, the
Trustee by written notice to the Company, or the Holders of at
least 25% of the aggregate principal amount of the then
outstanding Notes, by written notice to the Company and the
Trustee, may declare all of the Notes to be due and payable
immediately. Upon such declaration, the unpaid principal of,
premium, if any, and accrued interest on the Notes shall be due
and payable. Notwithstanding the foregoing, in the case of an
Event of Default specified in clause (vii) or (viii) of Section
6.1 with respect to the Company or any Significant Subsidiary,
such an amount shall ipso facto become immediately due and
payable without any declaration, notice or other act on the part
of the Trustee or any Holder.
Section 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of
the principal or premium, if any, and interest on the Notes and
to enforce the performance of any provision of the Notes or this
Indenture and may take any necessary action requested of it as
Trustee to settle compromise, adjust or otherwise conclude any
proceeding to which it is a party.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder
of a Note in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All remedies are
cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Events of Defaults.
Subject to Sections 6.2, 6.7 and 9.2, the Holders of
not less than a majority in aggregate principal amount of the
then outstanding Notes, by written notice to the Trustee, may on
behalf of the Holders of all of the Notes (a) waive any existing
Event of Default and its consequences, except (i) a continuing
Event of Default in the payment of interest on, premium, if any,
or the principal of, the Notes and (ii) a Default in respect of a
covenant or a provision which cannot be modified or amended
without the consent of all Holders and/or (b) rescind an
acceleration and its consequences, including any related payment
default that resulted from such acceleration, if the rescission
would not conflict with any judgment or decree of a court of
competent jurisdiction. Upon any such waiver or rescission, such
Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of
this Indenture; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
Section 6.5 Control by Majority.
Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the time, method and place
of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on it
under this Indenture; provided, that the Trustee may take any
other actions it deems proper that are not inconsistent with such
directions. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the
Trustee reasonably determines may be unduly prejudicial to the
rights of other Holders or that may involve the Trustee in
personal liability.
Section 6.6 Limitation on Suits.
A Holder may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in principal amount
of the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity;
(e) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Notes do not
give the Trustee a direction inconsistent with the request; and
(f) by accepting a Note, each Holder, in its capacity
as a Holder and as a stockholder of the Company (if the Holder is
a stockholder of the Company), agrees that in the event of any
subsequent bankruptcy, insolvency or other proceeding regarding
the Company or its affiliates it will not directly or indirectly
seek to reject or support a motion to reject or challenge any of
the Employment Agreements and Consulting Agreements, and that the
Employment Agreement Guarantees, the Fenchurch Note or the
Arrangement Fee Note shall not be subject to any objection,
request for estimation, equitable subordination or to otherwise
limit recovery thereof.
Section 6.7 Rights of Holders of Notes to Receive
Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of principal, premium,
if any, and interest on the Notes, on or after the respective due
dates expressed in the Notes (including in connection with an
offer to purchase), or to bring suit in accordance with the terms
of this Indenture for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(i),
(ii) or (iii) occurs and is continuing, the Trustee is authorized
to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal,
premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel. Section 6.9 Trustee May
File Proofs of Claim.
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed
in any judicial proceedings relative to the Company (or any other
obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.7
hereof. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of
any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this
Article, it shall, subject to Article XI of this Indenture, pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.7 and 6.9 hereof, including payment
of all reasonable compensation, expense and liabilities incurred,
and all advances made, by the Trustee and the costs and expenses
of collection;
Second: to Holders for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if
any, and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for
any payment to Holders.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claim
or defenses made by the party litigant. This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
Section 6.12 Event of Default from Willful Action.
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 any series of Notes pursuant to
Section 3.7 hereof, a one percent premium shall also become and
be immediately due and payable to the extent permitted by law.
The Trustee will have no responsibility for making, or
obligation to make, any determination that any such Event of
Default has occurred by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company
pursuant to this Section 6.12. If such premium is payable
hereunder, the Company will provide the Trustee with an Officers'
Certificate setting forth the date such premium is required to be
paid at least 45 days prior to such payment date.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the duties of the Trustee shall be
determined solely by the express provisions of this Indenture and
the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and (ii) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee conforming
to the requirements of this Indenture. However, in the case
of any such certificates or opinions which, by any provision
hereof, are required to be furnished to the Trustee, the Trustee
shall examine such certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liabilities for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect
of paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.2, 6.4 or 6.5 hereof.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holders shall have offered to the Trustee
security and indemnity reasonably satisfactory to the Trustee
against any cost, loss, liability or expense.
(e) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent
required by law.
(f) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 7.1.
Section 7.2 Rights of Trustee.
(a) The Trustee may conclusively rely upon any
document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel
or both. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any attorney or agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by
this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the
Company.
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 make loans to,
accept deposits from and perform services for, and may otherwise
deal with, the Company or any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest it
must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11 hereof.
Section 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, shall not be accountable for any money paid to the
Company or upon the Company's direction under any provision of
this Indenture, shall not be responsible for the use or
application of any money received by any Paying Agent other than
the Trustee, and shall not be responsible for any statement or
recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
Section 7.5 Notice of Defaults.
If a Default or an Event of Default occurs and is
continuing and if it is known to a Responsible Officer of the
Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of
principal, premium, if any, or interest on any Note, the Trustee
may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.
Section 7.6 Reports by Trustee to Holders of the
Notes.
Within 60 days after each May 15 of any year, beginning
with the May 15 following the date of this Indenture, the Trustee
shall mail to the Holders of the Notes a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the SEC and
each stock exchange on which the Notes are listed (if any). The
Company shall promptly notify the Trustee whenever the Notes
become listed on any stock exchange or of any delisting thereof.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee against any and
all losses, damages, claims, liabilities or expenses incurred by
it arising out of or in connection with the acceptance or
administration of its duties under this Indenture and the Non-
Recourse Pledge Agreement, including the costs and expenses of
enforcing this Indenture and the Non-Recourse Pledge Agreement
against the Company and the Hypothecators, as the case may be
(including this Section 7.7), and defending itself against any
claim (whether asserted by any Holder or any other Person) or
liability in connection with the exercise or performance of any
of its powers or duties hereunder or thereunder, except to the
extent any such loss, damage, claim, liability or expense may be
attributable to its negligence, bad faith or willful misconduct.
The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations
hereunder unless such failure prejudices the Company. The
Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.7
shall survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations under this
Section 7.7, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee, except
that held in trust to pay principal of and interest on particular
Notes. Such Lien shall survive the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(vii) or
Section 6.1(viii), the expenses and the compensation for the
services (including the reasonable fees and expenses of its
agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this
Section 7.8.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in principal amount of the
then outstanding Notes may remove the Trustee by so notifying
Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, the Company shall
promptly appoint a successor Trustee.
If a successor Trustee does not accept its appointment
within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company, or the Holders of at least 10%
in principal amount of the then outstanding Notes may petition
any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who
has been a Holder for at least six months, fails to comply with
Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor
Trustee; provided, that all sums owing to the Trustee hereunder
have been paid and subject to the Lien provided for in Section
7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company's obligations under Section 7.7
hereof shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee; provided,
that such successor is eligible and, qualified under Section 7.10
hereof.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is
a corporation organized and doing business under the laws of the
United States of America or of any state thereof that is
authorized under such laws to exercise corporate trust power,
that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at
least $100 million or, in the event that the Trustee is part of a
bank holding company system, the bank holding company must have a
combined capital and surplus of at least $100 million, in either
case, as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5).
The Trustee is subject to TIA Section 310(b).
Section 7.11 Preferential Collection of Claims
Against Company.
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Indenture; Option to Effect
Legal Defeasance or Covenant Defeasance.
(a) This Indenture shall cease to be of further
effect (except that the Company's obligations under Section 7.7
and the Company's, the Trustee's and any Paying Agent's
obligations under Section 8.6 shall survive) when all outstanding
Notes theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Notes that have been
replaced or paid) to the Trustee for cancellation and the Company
has paid all sums payable hereunder.
(b) In addition, 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
Eight.
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 of, premium, if
any, and interest on such Notes when such payments are due, (b)
the Company's, the Trustee's and the Paying Agent's obligations
with respect to such Notes under Sections 2.3 through 2.7 and
Section 4.2 and the Company's obligations under Section 7.7 and
(c) this Article Eight. Subject to compliance with this Article
Eight, 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 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.17 and 4.20 and clause (v) of Section 5.1 hereof
with respect to the outstanding Notes on 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.
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 Defense or Covenant
Defeasance:
(a) the Company must irrevocably deposit or cause
to be deposited with the Trustee or with a trustee satisfactory
to the Trustee and the Company under the terms of an irrevocable
trust agreement in form and substance reasonably satisfactory to
the Trustee, in trust, for the benefit of the Holders of the
Notes, (A) cash in United States dollars or (B) Government
Securities maturing as to principal and interest in such amounts
and at such times, or (C) a combination thereof, in each case, in
such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to
pay the principal of, premium, if any, and interest on the
outstanding Notes on the stated date for payment thereof or on
the applicable redemption date, as the case may be, of such
principal or installment of principal of, premium, if any, or
interest on the outstanding Notes;
(b) in the case of an election under Section 8.2
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States 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 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 in the United States 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 (1) on the date of such deposit (other
than a Default or Event of Default resulting from the incurrence
of Indebtedness all or a portion of the proceeds of which will be
used to defease the Notes pursuant to this Article Eight
concurrently with such incurrence) or (2) insofar as Section
6.1(vii) or Section 6.1(viii) hereof is concerned, at any time
during the period ending on the 91st day after the date of
deposit (it being understood that the condition in this clause
(2) is a condition subsequent and shall not be deemed satisfied
until the expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is
bound;
(f) 123 days pass after the deposit is made and
during the 123-day period no Event of Default specified in
Section 6.1(vii) or (viii) with respect to the Company occurs
which is continuing at the end of the period;
(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 defeating, hindering,
delaying or defrauding any actual creditors of the Company;
(h) the Company shall deliver to the Trustee an
Opinion of Counsel stating that, as a result of such Legal
Defeasance or Covenant Defeasance the trust created hereunder
shall not be required to register as an investment company under,
or other be subject to, the Investment Company Act of 1940, as
amended; and
(i) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to
the Legal Defeasance or the Covenant Defeasance have been
complied with.
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 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 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 Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the request of the Company any money or
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.
Subject to applicable law, 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 creditor, look
only to the Company for payment thereof (unless an abandoned
property law designates another Person), 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 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 Notes
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.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1 Without Consent of Holders of Notes.
Notwithstanding Section 9.2 of this Indenture, the Company and
the Trustee may amend or supplement this Indenture, the
Non-Recourse Pledge Agreement or the Notes without the consent of
any Holder of a Note:
(a) to, cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to Holders in the case of a merger or consolidation
or sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the Company's
properties or assets pursuant to Article Five hereof;
(d) to make any change that would provide any
additional rights or benefits to the Holders or that does not
adversely affect the rights hereunder of any Holder;
(e) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the
TIA; or
(f) to evidence or provide for a replacement Trustee
under Section 7.8.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of
any such amended or supplemental Indenture, and upon receipt by
the Trustee of the documents described in Section 9.6 hereof, the
Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the
terms of this Indenture and make any further appropriate
agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.2 With Consent of Holders of Notes.
The Company and the Trustee may amend or supplement
this Indenture, the Non-Recourse Pledge Agreement or the Notes
with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange
offer for the Notes), and, subject to Sections 6.4 and 6.7
hereof, any existing Event of Default (other than an Event of
Default in the payment of the principal of, premium, if any, or
interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any
provision of this Indenture, the Non-Recourse Pledge Agreement or
the Notes, may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or
exchange offer for the Notes).
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of
any such amended or supplemental Indenture, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders 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
amended or supplemental Indenture unless such amended or
supplemental Indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.2 becomes effective, the Company shall mail to the
Holders of the Notes a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sec- tions 6.4 and 6.7 hereof,
the Holders of a majority in aggregate principal amount of the
Notes then outstanding may waive compliance in a particular
instance by the Company or the Hypothecator, as the case may be,
with any provision of this Indenture, the Non- Recourse Pledge
Agreement or the Notes. Anything herein to the contrary
notwithstanding, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture, the Non-Recourse Pledge Agreement or
the Notes;
(b) reduce the principal of or change the fixed
maturity of any Note;
(c) alter any of the provisions permitting or
requiring the redemption of the Notes, except with respect to
permitting or requiring redemption or repurchase of Notes
pursuant to Sections 4.8 and 4.9 hereof, or reduce the purchase
price payable or change the time for payment in connection with
repurchases or redemptions of Notes pursuant to Sections 4.8 or
4.9 hereof;
(d) reduce the rate of or change the time for
payment of interest, including default interest, on any Note;
(e) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on the
Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of
the Notes and a waiver of the payment default that resulted from
such acceleration);
(f) make the principal of, or the interest on any
Note payable in money other than that stated in the Notes;
(g) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of
Holders to receive payments of principal of, premium, if any, or
interest on the Notes;
(h) waive a redemption payment with respect to
any Note except for a payment required by Section 4.8 or 4.9;
(i) alter the ranking of the Notes relative to
other Indebtedness of the Company;
(j) waive or amend Section 4.18 or 4.20 hereof;
(k) release any Pledged Collateral, except in
connection with a sale, transfer or other disposition permitted
by the Non-Recourse Pledge Agreement; or
(l) make any change in Section 6.4 or 6.7 hereof
or in the foregoing amendment and waiver provisions.
Section 9.3 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in an amended or supplemental Indenture
that complies with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note
may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If
a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or
not such Persons continue to be Holders after such record date.
No such consent shall be valid or effective for more than 120
days after such record date.
Section 9.5 Notation on or Exchange of Notes.
Upon the direction of the Company, the Trustee may
place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall
authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.6 Trustee to Sign Amendments, Etc.
The Trustee need not sign any supplemental indenture
adversely affecting its rights. In executing any amended or
supplemental indenture, the Trustee, shall be entitled to receive
and (subject to Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture, and that it will be
valid and binding upon the Company in accordance with its terms.
ARTICLE X
SECURITY
Section 10.1 Non-Recourse Pledge Agreement.
In order to jointly and severally secure the due and
punctual performance of the Secured Obligations (as defined in
the Non-Recourse Pledge Agreement), each Hypothecator will make
an assignment of its right, title and interest in and to the
Pledged Collateral to the Trustee pursuant to the Non-Recourse
Pledge Agreement, and to the extent therein provided, no later
than the Issue Date. Each Holder, by accepting a Note, agrees to
all of the terms and provisions of the Non-Recourse Pledge
Agreement, as the same may be amended from time to time pursuant
to the provisions of the Non-Recourse Pledge Agreement. The due
and punctual performance of the Secured Obligations shall be
secured by the Pledged Collateral as provided in the Non-
Recourse Pledge Agreement. The Non-Recourse Pledge Agreement
will create a direct and continuing valid Lien on the Pledged
Collateral, as set forth therein, free and clear of all Liens
whatsoever, except the Liens created by the Non-Recourse Pledge
Agreement.
Section 10.2 Recording, Etc.
The Company will cause, at its own expense, the
Non-Recourse Pledge Agreement, this Indenture and all amendments
or supplements thereto to be registered, recorded and filed or
re-recorded, re-filed and renewed in such manner and in such
place or places, if any, as may be required by law in order fully
to preserve and protect the security interest created under the
Non-Recourse Pledge Agreement in the Pledged Collateral and to
effectuate and preserve the security therein of the Holders and
all rights of the Trustee.
The Company shall furnish to the Trustee promptly after
the execution and delivery of the Non-Recourse Pledge Agreement,
an Opinion of Counsel either (a) stating that, in the opinion of
such Counsel, this Indenture and the assignment of the Pledged
Collateral intended to be made by the Non-Recourse Pledge
Agreement and all other instruments of further assurance or
amendment have been properly recorded, registered and filed to
the extent necessary to make effective the security interest in
the Pledged Collateral intended to be created by the Non-Recourse
Pledge Agreement, and reciting the details of such action or
referring to prior Opinions of Counsel in which such details are
given, and stating that as to the security interests in the
Pledged Collateral created pursuant to the Non-Recourse Pledge
Agreement such recording, registering and filing are the only
recordings, registering and filings necessary to give notice
thereof and that no re-recordings, reregistering or refilings are
necessary to maintain such notice, and further stating that all
financing statements and continuation statements have been
executed and filed that are necessary to preserve and protect
fully the rights of the Holders and the Trustee with respect to
the security interests in the Pledged Collateral hereunder and
under the Non-Recourse Pledge Agreement or (b) stating that, in
the opinion of such counsel, no such recordation, registration or
filing is necessary to make such Lien and assignment effective.
If at any time the Secured Obligations are no longer
secured pursuant to the Non-Recourse Pledge Agreement, whether
due to the payment in full or defeasance of the Notes or
otherwise, and if all obligations due to the Holders and the
Trustee under the Non-Recourse Pledge Agreement have been fully
performed, the security interest hereunder and under the
Non-Recourse Pledge Agreement for the benefit of the Notes may be
released at the sole option of the Hypothecators.
The release of any Pledged Collateral from the terms
hereof and the Non-Recourse Pledge Agreement will not be deemed
to impair the security under this Indenture in contravention of
the provisions hereof if and to the extent the Pledged Collateral
is released pursuant to the Non-Recourse Pledge Agreement. The
Trustee and each of the Holders acknowledge that a release of
Pledged Collateral in accordance with the terms of the
Non-Recourse Pledge Agreement will not be deemed for any purpose
to be an impairment of the security under this Indenture. To the
extent applicable, each Hypothecator and Company shall cause TIA
Section 314(d) relating to the release of property or securities
from the Lien of the Non-Recourse Pledge Agreement to be complied
with. Any certificate or opinion required by TIA Section 314(d)
may be made by an Officer of the Company, except in cases in
which TIA Section 314(d) requires that such certificate or
opinion be made by an independent Person.
Section 10.3 Suits to Protect the Pledged Collateral.
At the expense of the Company, the Trustee shall have
power to institute and to maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Pledged
Collateral by any acts which may be unlawful or in violation of
the Non-Recourse Pledge Agreement or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the
Holders in the Pledged Collateral (including power to institute
and maintain suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such
enactment, rule or order would impair the security hereunder or
be prejudicial to the interest of the Holders or the Trustee).
Section 10.4 Trustee Duties.
The powers conferred upon the Trustee by this Article X
are solely to protect the guarantees and pledges provided for
herein and shall not impose any duty upon the Trustee to exercise
any such powers except as expressly provided in this Indenture.
The Trustee shall be under no duty to the Company or any
Hypothecator to make or give any presentment, demand for
performance, notice of nonperformance, protest, notice of
protest, notice of dishonor or other notice or demand in
connection with any Pledged Collateral or to take any steps
necessary to preserve any rights against prior parties except as
expressly provided in this Indenture. To the extent permitted by
law, the Trustee shall not be liable to the Company or any
Hypothecator for failure to collect or realize upon any or all of
the Pledged Collateral or for any delay in so doing, nor shall
the Trustee be under any duty to the Company or any Hypothecator
to take any action whatsoever with regard thereto. The Trustee
has no duty to the Company, any Hypothecator or the Holders to
comply with any filing or other legal requirements necessary to
establish or maintain the validity, priority or enforceability
of, or the Trustee's rights in or to, any of the Pledged
Collateral.
ARTICLE XI
SUBORDINATION
Section 11.1 Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a
Note, by acceptance thereof, likewise covenants and agrees, that,
following the occurrence of a Consolidation Event, to the extent
and in the manner hereinafter set forth in this Article XI
(subject to the provisions of Section 11.11), the Indebtedness
represented by the Notes and the payment of the principal of and
interest on and all other amounts owing under each and all of the
Notes are hereby expressly made subordinate and subject in right
of payment to the prior indefeasible payment in full and in cash
of all Senior Indebtedness and that the subordination is for the
benefit of and enforceable by the holders of Senior Indebtedness.
Section 11.2 Payment Over of Proceeds Upon
Dissolution, Etc.
Following the occurrence of a Consolidation Event, in
the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, whether
under Bankruptcy Law or otherwise, or (b) any liquidation,
dissolution or other winding up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company,
then and in any such event the holders of Senior Indebtedness
shall be entitled to indefeasibly receive payment in full and in
cash of all amounts due or to become due on or in respect of all
Senior Indebtedness before the Holders of the Notes are entitled
to receive any payment on account of principal of or interest on
or any other amounts owing under the Notes, and to that end the
holders of Senior Indebtedness shall be entitled to receive, for
application to the payment thereof, any Securities Payment.
In the event that, notwithstanding the foregoing
provisions of this Section 11.2, the Trustee or any Holder shall
have received any Securities Payment before all Senior
Indebtedness is indefeasibly paid in full and in cash, then and
in such event such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to indefeasibly pay all Senior
Indebtedness in full and in cash, after giving effect to any
concurrent payment or distribution to or for the holders of
Senior Indebtedness.
For purposes of this Article XI only, the words
"Securities Payment" shall not be deemed to include
Reorganization Securities.
Section 11.3 Subrogation to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness and the occurrence of a Consolidation Event, the
Holders of the Notes shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and
interest on the Notes shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to
which the Holders of the Notes or the Trustee would be entitled
except for the provisions of this Article XI, and no payments
over pursuant to the provisions of this Article XI to the holders
of Senior Indebtedness by Holders of the Notes or the Trustee,
shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders, be deemed to be a payment or
distribution by the Company to or on account of the Senior
Indebtedness.
Section 11.4 Provisions Solely to Define Relative
Rights.
The provisions of this Article XI are and are intended
solely for the purpose of defining the relative rights of the
Holders on the one hand and the holders of Senior Indebtedness on
the other hand upon the occurrence of a Consolidation Event.
Nothing contained in this Article XI or elsewhere in this
Indenture or in the Notes is intended to or shall (a) impair, as
among the Company, its creditors other than holders of Senior
Indebtedness and the Holders, the obligation of the Company,
which is absolute and unconditional (and which, subject to the
rights under this Article XI of the holders of Senior
Indebtedness upon the occurrence of a Consolidation Event, is
intended to rank equally with all other general obligations of
the Company), to pay to the Holders the principal of and interest
on the Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights
against the Company of the Holders and creditors of the Company
other than the holders of Senior Indebtedness upon the occurrence
of a Consolidation Event; or (c) prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XI of the holders of Senior
Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder upon the
occurrence of a Consolidation Event.
Section 11.5 Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof
authorizes and directs the Trustee on behalf of such Holder to
take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article XI and appoints the
Trustee his 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 case or proceeding described in
Section 11.2 at least 20 days before the expiration of the time
to file such proof, the Senior Indebtedness Representative may,
and is hereby authorized to, file such proof for and on behalf of
the Holders.
Section 11.6 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or notice
to the Trustee or the Holders, without incurring responsibility
to or notice to the Holders or the Trustee and without impairing
or releasing the subordination provided in this Article XI or the
obligations hereunder of the Holders to the holders of Senior
Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness, or otherwise
amend, modify, compromise, supplement or waive in any manner
Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii)
sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release the Company or any Person liable in any manner for
the collection of Senior Indebtedness; (iv) exercise or refrain
from exercising any rights against the Company and any other
Person; and (v) take, or omit to take, any other action that in
the absence of the authority granted hereby, could have the
effect of impairing, invalidating or rendering unenforceable, in
whole or in part, or otherwise affecting any of the provisions of
this Article XI.
Section 11.7 Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article XI, the Trustee, subject to
the provisions of Article VII, and the Holders shall be entitled
to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding
up or similar case or proceeding is pending, or a certificate of
the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or 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 XI.
The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would
prohibit any payment hereunder by the Trustee unless the Trustee
shall have received notice to that effect at the address of the
Trustee. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this
Article XI and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this
Indenture against the Trustee.
Section 11.8 Trustee Not Fiduciary for Holders of
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness.
Section 11.9 Rights of Trustee as Holder of Senior
Indebtedness; Preeservation of Trustee's Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XI with
respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article XI shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.7.
Section 11.10 Article Applicable to Paying Agents.
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 XI
shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XI in addition to or in
place of the Trustee; provided, however, that Section 11.9 shall
not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
Section 11.11 Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the
contrary, all payments from money or the proceeds of Government
Securities deposited with the Trustee prior to the occurrence of
a Consolidation Event and held in trust under Article VIII by the
Trustee and applied, prior to the occurrence of a Consolidation
Event, to the payment of principal of and interest on the Notes
shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this
Article XI, and none of the Holders shall be obligated to pay
over any such Additional Interest or Additional Default Interest
or payments from money or the proceeds of Government Securities
held in trust under Article VIII to the Company or any holder of
Senior Indebtedness of the Company or any other creditor of the
Company.
Section 11.12 Reliance by Holders of Senior
Indebtedness on Subordination
Provisions.
Each Holder of a Note by his acceptance thereof
acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness, whether
such Senior Indebtedness was created or acquired before or after
the issuance of the Notes, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied
on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of TIA Sections 310-317,
inclusive, through operation of TIA Section 318(c), such imposed
duties shall control.
Section 12.2 Notices.
Any notice or communication by any party hereto to the
other parties hereto shall be duly given if in writing and
delivered in Person or mailed by first class mail (registered or
certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the
others, at the following address:
If to the Company:
XXXXXX, INC.
000 Xxxxxxx 0 Xxxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Trustee:
First Trust National Association
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X. X. Xxxx, Xx.
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to any Hypothecator, to its address set forth in the
Non-Recourse Pledge Agreement.
Each of the Company and the Trustee, by notice to the
others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent
to Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to
the courier, if sent by a reputable overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed
by first class mail, certified or registered, return receipt
requested, or by a reputable overnight air courier guaranteeing
next day delivery to its address shown on the register kept by
the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the
extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 12.3 Communication by Holders
of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the Registrar
and any other Person shall have the protection of TIA Section
312(c).
Section 12.4 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:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.5 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants,
if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.5 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and
covenants have been complied with.
Section 12.5 Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section
314(a)(4)) shall comply with the provisions of TIA Section 314(e)
and shall include:
(a) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied
with; provided, that with respect to matters of fact, Opinions
of Counsel may rely on an Officers' Certificate or certificate of
public officials.
Section 12.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 12.7 Employees and Stockholders.
No director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for
any obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
Section 12.8 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE CONSTRUED,
INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CHOICE OF LAW PROVISIONS.
Section 12.9 Jurisdiction; Venue.
(a) EACH OF THE PARTIES HERETO AGREES THAT ANY
ACTION, SUIT OR PROCEEDING AGAINST ANY OF THE PARTIES HERETO
ARISING UNDER OR RELATING IN ANY WAY TO THIS AGREEMENT, ANY
AGREEMENT CONTEMPLATED HEREBY OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY MAY ONLY BE BROUGHT OR ENFORCED IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND EACH OF THE PARTIES HERETO IRREVOCABLY
CONSENTS TO THE JURISDICTION OF EACH SUCH COURT IN RESPECT OF ANY
SUCH ACTION, SUIT OR PROCEEDING. EACH OF THE PARTIES HERETO
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY
SUCH ACTION, SUIT OR PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED TO SUCH PARTY AT ITS ADDRESS AS PROVIDED FOR NOTICES
HEREUNDER.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HERE- AFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING UNDER
OR RELATING IN ANY WAY TO THIS AGREEMENT, ANY AGREEMENT
CONTEMPLATED HEREBY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY IN ANY COURT LOCATED IN THE STATE OF NEW YORK, AND HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT A COURT LOCATED IN THE
STATE OF NEW YORK IS NOT A CONVENIENT FORUM FOR ANY SUCH ACTION,
SUIT OR PROCEEDING.
Section 12.10 No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 12.11 Successors.
All agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
Section 12.12 Severability.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 12.13 Counterpart Originals.
The parties may sign any number of counterparts of this
Indenture. Each signed counterpart shall be an original, but all
of them together represent one and the same agreement.
Section 12.14 Table of Contents, Headings, Etc.
The table of contents, cross-reference table and
headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written
above.
XXXXXX, INC.
Attest: By:__________________
Name: Name:
Title:
By:__________________
Name:
Title:
FIRST TRUST NATIONAL
ASSOCIATION
Attest: By:__________________
Name: Name:
Title:
THE HYPOTHECATORS
_____________________
Name: Xxxxx X. Xxxx
_____________________
Name: Xxxxx X. Xxxx
_____________________
Name: Xxxxxxx X. Xxxx
EXHIBIT A
(Face of Note)
13% Senior Note due 2004
No. CUSIP No. [__________]
XXXXXX, INC.
a Delaware corporation,
promises to pay to
or registered assigns, the principal sum of ___________________
Dollars on November 15, 2004.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Additional provisions of this Security are set forth on
the other side of this Security.
Dated: __________________ XXXXXX, INC.
By:_________________
Name:
Title:
By:_________________
Name:
Title:
THE HYPOTHECATORS
_____________________
Name: Xxxxx X. Xxxx
_____________________
Name: Xxxxx X. Xxxx
_____________________
Name: Xxxxxxx X. Xxxx
_____________________
Name: Xxxxxxxx Xxxx
Trustee's Certificate
of Authentication
This is one of the 13% Senior Notes
due 2004 referred to in the within-
mentioned Indenture:
First Trust National Association
_____________________________________
as Trustee
By: _________________________________
Authorized Signatory
(Back of Note)
13% Senior Note due 2004
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
Section 1. Interest. Xxxxxx, Inc., a Delaware
corporation (the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to),
promises to pay interest on the principal amount of this Note at
13% per annum from the Issue Date until maturity. The Company
will pay interest semi-annually on May 15 and November 15 of each
year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid,
from January 15, 1998; provided, that if there is no existing
Default in the payment of interest, and if this note is
authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be
May 15, 1998. The Company shall pay interest (including
post-petition interest in any proceeding under Bankruptcy Law) on
overdue principal and premium, if any, from time to time on
demand at a rate that is 2% per annum in excess of the interest
rate then in effect on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day
months.
Section 2. Method of Payment. The Company will pay
interest on the Notes (except defaulted interest) to the Persons
who are registered Holders of Notes at the close of business on
May 1 or November 1 preceding the Interest Payment Date (whether
or not such day is a Business Day), even if such Notes are
canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be payable as
to principal and interest at the office or agency of the Company
maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders. Such payment
will be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public
and private debts.
The Company may, at its option, satisfy its obligation
to pay interest on this Note on any Interest Payment Date by
delivering to the Holder of this Note a new Note (an "Accrued
Interest Note"), in the form of this Note, dated such Interest
Payment Date (and bearing interest from such Interest Payment
Date) and having a principal amount corresponding to the amount
of interest due on this Note on such Interest Payment Date;
provided, however, that the Company shall not issue an Accrued
Interest Note in payment of any accrued interest payable upon any
redemption or repurchase of all or any portion of this Note, and
instead shall pay such accrued interest in cash.
Section 3. Paying Agent and Registrar. Initially,
First Trust National Association, the Trustee under the
Indenture, will act as Registrar and Paying Agent. The Company
may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any
such capacity.
Section 4. Indenture. The Company issued the Notes
under an Indenture dated as of [ ,] 1998 (the
"Indenture") among the Company, the Trustee and the Pledgors.
The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code 77aaa-77bbb).
The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. The
Notes are unsecured obligations of the Company, other than
certain obligations to pay Additional Interest and Additional
Default Interest, as described in Section 5 below. Upon the
occurrence of a Consolidation Event, the Notes are subordinate
and subject in right of payment to the prior payment in full and
in cash of all Senior Indebtedness, as described in Section 17
hereof and in the Indenture. The Notes are limited to
$73,004,724 (plus the principal amount of any Accrued Interest
Notes issued pursuant to the second paragraph of Section 2 of the
Notes) in aggregate principal amount.
Section 5. Additional Interest and Additional
Default Interest. In the event that the Notes have not been
redeemed or repaid in full as of the second, third, fourth,
fifth, sixth or seventh anniversary of the Additional Interest
Calculation Date, the Company will pay Additional Interest on the
Notes in the form of the Company's Common Stock, as set forth in
the Indenture. The obligation of the Company to pay such
additional interest shall be secured by a pledge of Common Stock
by SPV Fenchurch, LLC (the "Hypothecator"). In addition, upon
the occurrence of certain events of default under the Indenture,
the Hypothecators will transfer and deliver to the Trustee, for
the benefit of the holders of the Notes, Common Stock of the
Company in an amount such that the holders of the Notes will
collectively own 51% of the outstanding Common Stock of the
Company.
Section 6. Optional Redemption. The Notes will be
subject to redemption at any time at the option of the Company,
in whole or in part, upon not less than 30 nor more than 60 days'
notice, at a redemption price of 100% of the principal amount
then outstanding plus accrued and unpaid interest thereon to the
applicable date of redemption.
Section 7. Mandatory Redemption. Except as set
forth under Sections 4.8 or 4.9 of the Indenture, the Company
shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
Section 8. Notice of Redemption. Notice of
redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in Authorized
Denominations, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to
accrue on Notes or portions thereof called for redemption,
provided that the Company shall have deposited with the Trustee
or Paying Agent funds sufficient to redeem such Notes not later
than the redemption date.
Section 9. Change of Control. Upon the occurrence
of a Change of Control, the Company will be required to make an
offer to repurchase all or any part (equal to $1,000 principal
amount or an integral multiple thereof) of a Holder's Notes at a
purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase.
Within 30 days following the date on which the Company has actual
knowledge that a Change of Control has occurred, the Company
shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the
Indenture. Holders of Notes may elect to have such Notes
purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
Section 10. Asset Sales. If the Company consummates
any Asset Sales, and when the aggregate amount of Excess Proceeds
exceeds $5 million, 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 such Excess Proceeds, at an
offer price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of
repurchase. Holders of Notes that are the subject of an offer to
purchase shall receive an Asset Sale Offer from the Company prior
to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
Section 11. Denominations, Transfer, Exchange. The
Notes are in registered form without coupons in Authorized
Denominations. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company
may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar shall not be required
(A) to register the transfer of or to exchange Notes during a
period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.7 of
the Indenture and ending at the close of business on the day of
selection; or (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or (C) to
register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.
Section 12. Persons Deemed Owners. The registered
Holder of a Note may be treated as its owner for all purposes,
subject, with respect to payment of interest, to the provisions
of the Indenture relating to record dates.
Section 13. Amendment, Supplement and Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision
of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then
outstanding Notes. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations
to Holders in case of a merger or consolidation or sale,
assignment, transfer, lease, conveyance or other disposition of
all or substantially all of the Company's properties or assets,
to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the
rights under the Indenture of any such Holder, to comply with the
requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or
to evidence or provide for a replacement Trustee pursuant to the
Indenture.
Section 14. Restrictive Covenants. The Indenture
imposes certain limitations on the ability of the Company and its
Subsidiaries to, among other things, pay dividends or make
certain other Restricted Payments, incur additional Indebtedness
or Liens, enter into transactions with Affiliates, make payments
in respect of its Capital Stock or issue additional or sell
Capital Stock, merge or consolidate with any other person or
sell, lease, transfer or otherwise dispose of substantially all
of its properties or assets or enter into sale and leaseback
transactions. The limitations are subject to certain
qualifications and exceptions. The Company must make quarterly
reports to the Trustee regarding compliance with such
limitations.
Section 15. Successor Corporation. When a successor
corporation assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor corporation will be
released from those obligations.
Section 16. Defaults and Remedies. If an Event of
Default occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable
immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the
Indenture or the Notes. 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 or interest) if it determines that
withholding notice is in their interest. By accepting a Note,
each Holder, in its capacity as a Holder, agrees that it will not
directly or indirectly seek to reject or support a motion to
reject any of the Employment Agreements, the Consulting
Agreements, the Employment Agreement Guarantees, the Fenchurch
Note or the Arrangement Fee Note in the event of a Xxxxxx
Brothers Inc. bankruptcy filing.
Section 17. Subordination of Securities. The
indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the
prior payment in full and in cash of all Senior Indebtedness upon
the occurrence of a Consolidation Event, and this Note is issued
subject to the provisions of the Indenture with respect thereto.
Each Holder of this Note, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination so provided, and
(c) appoints the Trustee his attorney-in- fact for any and all
such purposes.
Section 18. Trustee Dealings with Company. The
Trustee, in its individual or any other capacity, may make loans
to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
Section 19. No Recourse Against Others. A director,
officer, employee, incorporator or stockholder, of the Company,
as such, shall not have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases
all such liability. The waiver and release are part of the
consideration for the issuance of the Notes. Such waiver may not
be effective to waive liabilities under the federal securities
laws and it is the view of the SEC that such a waiver is against
public policy.
Section 20. Authentication. This Note shall not be
valid until authenticated by the manual signature of the Trustee
or an authenticating agent.
Section 21. Notes. The term "Notes" refers to,
collectively, the Notes issuable under the Indenture (including
any Accrued Interest Notes).
Section 22. Abbreviations. Customary abbreviations
may be used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).
Section 23. CUSIP Numbers. Pursuant to a
recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests for
such documents and for additional information may be made to:
Xxxxxx, Inc., 101 Xxxxxxx, 0 Xxxxxxxxxxx Xxxx, 0xx Xxxxx,
Xxxxxxx, XX 00000, Attention: Secretary.
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or
(we) assign and transfer this Note to
______________________________________________________________
(Insert assignee's soc sec. or tax I.D. no.)
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________
agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date: __________________
Your Signature:____________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:_______________________
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.8 or 4.9 of the Indenture, check
the applicable box below:
Section 4.8 Section 4.9
If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.8 or 4.9 of the
Indenture, state the amount you elect to have purchased:
$________________
Date: _________________ Your Signature:_________________
(Sign exactly as your name appears
on the Note)
Tax Identification No.:__________
Signature Guarantee: ___________________
[PWRWG DRAFT 3/6/98]
INDENTURE
dated as of __________________, 1998
among
XXXXXX, INC.,
the HYPOTHECATORS NAMED HEREIN
and
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee.
TABLE OF Page
INDENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND INCORPORATION
BY REFERENCE. . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Definitions . . . . . . . . . . . . . . . .1
Section 1.2 Other Definitions . . . . . . . . . . . . 24
Section 1.3 Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . .25
Section 1.4 Rules of Construction . . . . . . . . . . 25
ARTICLE II THE NOTES. . . . . . . . . . . . . . . . . . . . .26
Section 2.1 Form and Dating . . . . . . . . . . . . . 26
Section 2.2 Execution and Authentication. . . . . . . 27
Section 2.3 Registrar and Paying Agent. . . . . . . . 27
Section 2.4 Paying Agent to Hold Money in Trust . . . 28
Section 2.5 Holder Lists. . . . . . . . . . . . . . . 28
Section 2.6 Transfer and Exchange . . . . . . . . . . 28
Section 2.7 Replacement Notes . . . . . . . . . . . . 29
Section 2.8 Outstanding Notes . . . . . . . . . . . . 29
Section 2.9 Treasury Notes. . . . . . . . . . . . . . 30
Section 2.10 Temporary Notes . . . . . . . . . . . . . 30
Section 2.11 Cancellation. . . . . . . . . . . . . . . 30
Section 2.12 Defaulted Interest. . . . . . . . . . . . 31
Section 2.13 CUSIP Number. . . . . . . . . . . . . . . 31
Section 2.14 Book-Entry Provisions for Global Notes. . 31
Section 2.15 Wire Payments to Holders. . . . . . . . . 33
ARTICLE III REDEMPTION AND PREPAYMENT. . . . . . . . . . . . .33
Section 3.1 Notices to Trustee. . . . . . . . . . . . 33
Section 3.2 Selection of Notes to Be Redeemed . . . . 33
Section 3.3 Notice of Redemption. . . . . . . . . . . 34
Section 3.4 Effect of Notice of Redemption. . . . . . 35
Section 3.5 Deposit of Redemption Price . . . . .35
Section 3.6 Notes Redeemed in Part. . . . . . . . . . 35
Section 3.7 Optional Redemption . . . . . . . . . . . 36
Section 3.8 Mandatory Redemption. . . . . . . . . . . 36
Section 3.9 Offers to Purchase by Application of
Excess Proceeds. . . . . . . . . . . . . .36
ARTICLE IV COVENANTS. . . . . . . . . . . . . . . . . . . 38
Section 4.1 Payment of Notes. . . . . . . . . . . . . 38
Section 4.2 Maintenance of Office or Agency . . . . . 38
Section 4.3 Reports . . . . . . . . . . . . . . . . . 39
Section 4.4 Compliance Certificate. . . . . . . . . . 40
Section 4.5 Taxes . . . . . . . . . . . . . . . . . . 41
Section 4.6 Stay, Extension and Usury Laws. . . . . . 41
Section 4.7 Corporate Existence . . . . . . . . . . . 41
Section 4.8 Change of Control . . . . . . . . . . . . 41
Section 4.9 Limitation on Asset Sales . . . . . . . . 43
Section 4.10 Limitation on Restricted Payments . . . . 45
Section 4.11 Limitation on Incurrence of Indebtedness;
Issuance of Capital Stock. . . . . . . . .47
Section 4.12 Limitation on Liens . . . . . . . . . . . 48
Section 4.13 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries. . . .48
Section 4.14 Limitation on Transactions with
Affiliates. . . . . . . . . . . . . . . . 49
Section 4.15 Limitation on Sale and Leaseback
Transactions. . . . . . . . . . . . . . . 50
Section 4.16 Compliance with Laws. . . . . . . . . . . 50
Section 4.17 Limitation on Sale of Capital Stock of
Subsidiaries. . . . . . . . . . . . . . . 50
Section 4.18 Payments for Consents . . . . . . . . . . 50
Section 4.19 Maintenance of Properties, etc. . . . . . 51
Section 4.20 Additional Interest. . . . . . . . . . . . 51
ARTICLE V SUCCESSORS . . . . . . . . . . . . . . . . . . . .55
Section 5.1 Limitation on Mergers, Consolidations and
Sales of Assets. . . . . . . . . . . . . .55
Section 5.2 Successor Corporation Substituted . . . . 56
ARTICLE VI DEFAULTS AND REMEDIES. . . . . . . . . . . . . . .56
Section 6.1 Events of Default . . . . . . . . . . . . 56
Section 6.2 Acceleration. . . . . . . . . . . . . . . 59
Section 6.3 Other Remedies. . . . . . . . . . . . . . 59
Section 6.4 Waiver of Past Events of Defaults . . . . 59
Section 6.5 Control by Majority . . . . . . . . . . . 60
Section 6.6 Limitation on Suits . . . . . . . . . . . 60
Section 6.7 Rights of Holders of Notes to Receive
Payment. . . . . . . . . . . . . . . . . .61
Section 6.8 Collection Suit by Trustee. . . . . . . . 61
Section 6.9 Trustee May File Proofs of Claim. . . . . 61
Section 6.10 Priorities. . . . . . . . . . . . . . . . 61
Section 6.11 Undertaking for Costs . . . . . . . . . . 62
Section 6.12 Event of Default from Willful Action. . . 62
ARTICLE VII TRUSTEE. . . . . . . . . . . . . . . . . . . . . .63
Section 7.1 Duties of Trustee . . . . . . . . . . . . 63
Section 7.2 Rights of Trustee . . . . . . . . . . . . 64
Section 7.3 Individual Rights of Trustee. . . . . . . 64
Section 7.4 Trustee's Disclaimer. . . . . . . . . . . 65
Section 7.5 Notice of Defaults. . . . . . . . . . . . 65
Section 7.6 Reports by Trustee to Holders of
the Notes . . . . . . . . . . . . . . . . 65
Section 7.7 Compensation and Indemnity. . . . . . . . 66
Section 7.8 Replacement of Trustee. . . . . . . . . . 67
Section 7.9 Successor Trustee by Merger, Etc. . . . . 68
Section 7.10 Eligibility; Disqualification . . . . . . 68
Section 7.11 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . 68
ARTICLE VIII DISCHARGE OF INDENTURE. . . . . . . . . . . .68
Section 8.1 Discharge of Indenture; Option to Effect
Legal Defeasance or Covenant Defeasance . 68
Section 8.2 Legal Defeasance and Discharge. . . . . . 69
Section 8.3 Covenant Defeasance . . . . . . . . . . . 69
Section 8.4 Conditions to Legal or Covenant
Defeasance . . . . . . . . . . . . . . . .70
Section 8.5 Deposited Money and Government Securities
to be Held in Trust; Other Miscellaneous
Provisions . . . . . . . . . . . . . . . .71
Section 8.6 Repayment to Company. . . . . . . . . . . 72
Section 8.7 Reinstatement . . . . . . . . . . . . . . 72
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . .73
Section 9.1 Without Consent of Holders of Notes . . . 73
Section 9.2 With Consent of Holders of Notes. . . . . 74
Section 9.3 Compliance with Trust Indenture Act . . . 76
Section 9.4 Revocation and Effect of Consents . . . . 76
Section 9.5 Notation on or Exchange of Notes. . . . . 76
Section 9.6 Trustee to Sign Amendments, Etc.. . . . . 76
ARTICLE X SECURITY . . . . . . . . . . . . . . . . . . . . .77
Section 10.1 Non-Recourse Pledge Agreement.. . . . . . 77
Section 10.2 Recording, Etc. . . . . . . . . . . . . . 77
Section 10.3 Suits to Protect the Pledged Collateral. .78
Section 10.4 Trustee Duties. . . . . . . . . . . . . . 79
ARTICLE XI SUBORDINATION. . . . . . . . . . . . . . . . . . .79
Section 11.1 Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . . . . .79
Section 11.2 Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . . . 79
Section 11.3 Subrogation to Rights of Holders of
Senior Indebtedness . . . . . . . . . . . 80
Section 11.4 Provisions Solely to Define Relative
Rights . . . . . . . . . . . . . . . . . .80
Section 11.5 Trustee to Effectuate Subordination . . . 81
Section 11.6 No Waiver of Subordination Provisions . . 81
Section 11.7 Reliance on Judicial Order or
Certificate of Liquidating Agent. . . . . 82
Section 11.8 Trustee Not Fiduciary for Holders of
Senior Indebtedness. . . . . . . . . . . .82
Section 11.9 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . .82
Section 11.10 Article Applicable to Paying Agents . . . 83
Section 11.11 Trust Moneys Not Subordinated . . . . . . 83
Section 11.12 Reliance by Holders of Senior Indebtedness
on Subordination Provisions . . . . . . . 83
ARTICLE XII MISCELLANEOUS. . . . . . . . . . . . . . . . . . .84
Section 12.1 Trust Indenture Act Controls. . . . . . . 84
Section 12.2 Notices . . . . . . . . . . . . . . . . . 84
Section 12.3 Communication by Holders of Notes
with Other Holders of Notes. . . . . . . .85
Section 12.4 Certificate and Opinion as to
Conditions Precedent . . . . . . . . . . .85
Section 12.5 Statements Required in Certificate
or Opinion . . . . . . . . . . . . . . . .86
Section 12.6 Rules by Trustee and Agents . . . . . . . 86
Section 12.7 Employees and Stockholders. . . . . . . . 86
Section 12.8 Governing Law . . . . . . . . . . . . . . 87
Section 12.9 Jurisdiction; Venue . . . . . . . . . . . 87
Section 12.10 No Adverse Interpretation of Other
Agreements . . . . . . . . . . . . . . . .87
Section 12.11 Successors. . . . . . . . . . . . . . . . 88
Section 12.12 Severability. . . . . . . . . . . . . . . 88
Section 12.13 Counterpart Originals . . . . . . . . . . 88
Section 12.14 Table of Contents, Headings, Etc. . . . . 88
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1). . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . 7.10
(b). . . . . . . . . . . . . . . . . . . . 7.08, 7.10
(c). . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . 2.05
(b). . . . . . . . . . . . . . . . . . . . 12.03
(c). . . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . 7.06
(c). . . . . . . . . . . . . . . . . . . . 7.06, 12.02
(d) . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . 4.03, 4.04, 12.02
(b). . . . . . . . . . . . . . . . . . . . 10.02
(c)(1) . . . . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . . . . 12.04
(c)(3) . . . . . . . . . . . . . . . . . . N.A.
(d). . . . . . . . . . . . . . . . . . . . 10.02
(e). . . . . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . 7.01
(b). . . . . . . . . . . . . . . . . . . . 7.05, 12.02
(c). . . . . . . . . . . . . . . . . . . . 7.01
(d). . . . . . . . . . . . . . . . . . . . 7.01
(e). . . . . . . . . . . . . . . . . . . . 6.11
316(a) (last sentence) . . . . . . . . . . . . 2.09
(a)(1)(A). . . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . 6.07
(c). . . . . . . . . . . . . . . . . . . . 2.12
317(a)(1). . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . 12.01
(b). . . . . . . . . . . . . . . . . . . . N.A.
(c). . . . . . . . . . . . . . . . . . . . 12.01
__________________
"N.A." means not applicable.
*This Cross-Reference Table is not part of the Indenture.
