EXHIBIT T(3)C
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WKI HOLDING COMPANY, INC.
12% Senior Subordinated Notes due 20[09]
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INDENTURE
Dated as of [December 31, 2002]
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STATE STREET BANK AND TRUST COMPANY,
as Trustee
TABLE OF CONTENTS
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.............................................................1
SECTION 1.02. Other Definitions......................................................27
SECTION 1.03. Incorporation by Reference of Trust Indenture Act......................28
SECTION 1.04. Rules of Construction..................................................29
ARTICLE II
The Securities
SECTION 2.01. Form and Dating........................................................29
SECTION 2.02. Execution and Authentication...........................................30
SECTION 2.03. Registrar and Paying Agent.............................................30
SECTION 2.04. Paying Agent to Hold Money in Trust....................................31
SECTION 2.05. Holder Lists...........................................................31
SECTION 2.06. Transfer and Exchange..................................................31
SECTION 2.07. Replacement Securities.................................................32
SECTION 2.08. Outstanding Securities.................................................33
SECTION 2.09. Temporary Securities...................................................33
SECTION 2.10. Cancelation............................................................34
SECTION 2.11. Defaulted Interest.....................................................34
SECTION 2.12. CUSIP Numbers..........................................................34
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee.....................................................34
SECTION 3.02. Selection of Securities To Be Redeemed.................................35
SECTION 3.03. Notice of Redemption...................................................35
SECTION 3.04. Effect of Notice of Redemption.........................................36
SECTION 3.05. Deposit of Redemption Price............................................36
SECTION 3.06. Securities Redeemed in Part............................................36
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ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities..................................................36
SECTION 4.02. SEC Reports............................................................37
SECTION 4.03. Limitation on Indebtedness.............................................37
SECTION 4.04. Limitation on Restricted Payments......................................39
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries....................................42
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.....................43
SECTION 4.07. Limitation on Transactions with Affiliates.............................46
SECTION 4.08. Change of Control......................................................47
SECTION 4.09. Compliance Certificate.................................................49
SECTION 4.10. Further Instruments and Acts...........................................49
SECTION 4.11. Future Subsidiary Guarantors...........................................49
SECTION 4.12. Limitation on Lines of Business........................................49
SECTION 4.13. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries.................................49
SECTION 4.14. Limitations on Liens...................................................50
SECTION 4.15. Ratings................................................................50
SECTION 4.16. Payment of Fees and Expenses. .........................................50
SECTION 4.17. Indemnification........................................................51
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets..............................52
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default......................................................54
SECTION 6.02. Acceleration...........................................................56
SECTION 6.03. Other Remedies.........................................................56
SECTION 6.04. Waiver of Past Defaults................................................57
SECTION 6.05. Control by Majority....................................................57
SECTION 6.06. Limitation on Suits....................................................57
SECTION 6.07. Rights of Holders to Receive Payment...................................58
SECTION 6.08. Collection Suit by Trustee.............................................58
SECTION 6.09. Trustee May File Proofs of Claim.......................................58
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SECTION 6.10. Priorities.............................................................58
SECTION 6.11. Undertaking for Costs..................................................59
SECTION 6.12. Waiver of Stay or Extension Laws.......................................59
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee......................................................59
SECTION 7.02. Rights of Trustee......................................................60
SECTION 7.03. Individual Rights of Trustee...........................................61
SECTION 7.04. Trustee's Disclaimer...................................................61
SECTION 7.05. Notice of Defaults.....................................................62
SECTION 7.06. Reports by Trustee to Holders..........................................62
SECTION 7.07. Compensation and Indemnity.............................................62
SECTION 7.08. Replacement of Trustee.................................................63
SECTION 7.09. Successor Trustee by Merger............................................64
SECTION 7.10. Eligibility; Disqualification..........................................64
SECTION 7.11. Preferential Collection of Claims Against Company......................65
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.......................65
SECTION 8.02. Conditions to Defeasance...............................................66
SECTION 8.03. Application of Trust Money.............................................67
SECTION 8.04. Repayment to Company...................................................68
SECTION 8.05. Indemnity for Government Obligations...................................68
SECTION 8.06. Reinstatement..........................................................68
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders.............................................68
SECTION 9.02. With Consent of Holders................................................69
SECTION 9.03. Compliance with Trust Indenture Act....................................70
SECTION 9.04. Revocation and Effect of Consents and Waivers..........................71
SECTION 9.05. Notation on or Exchange of Securities..................................71
SECTION 9.06. Trustee to Sign Amendments.............................................71
SECTION 9.07. Payment for Consent....................................................72
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ARTICLE X
Subordination
SECTION 10.01. Agreement To Subordinate..............................................72
SECTION 10.02. Liquidation, Dissolution, Bankruptcy..................................72
SECTION 10.03. Default on Bank Indebtedness..........................................72
SECTION 10.04. Acceleration of Payment of Securities.................................73
SECTION 10.05. When Distribution Must Be Paid Over...................................74
SECTION 10.06. Subrogation...........................................................74
SECTION 10.07. Relative Rights.......................................................74
SECTION 10.08. Subordination May Not Be Impaired by Company..........................74
SECTION 10.09. Rights of Trustee and Paying Agent....................................74
SECTION 10.10. Distribution or Notice to Representative..............................75
SECTION 10.11. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate..................................75
SECTION 10.12. Trust Monies Not Subordinated.........................................75
SECTION 10.13. Trustee Entitled To Rely..............................................75
SECTION 10.14. Trustee To Effectuate Subordination...................................76
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness..............76
SECTION 10.16. Reliance by Holders of Senior Indebtedness
on Subordination Provisions................................76
ARTICLE XI
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees.................................................77
SECTION 11.02. Limitation on Liability...............................................79
SECTION 11.03. Successors and Assigns................................................80
SECTION 11.04. No Waiver.............................................................80
SECTION 11.05. Modification..........................................................80
SECTION 11.06. Execution of Supplemental Indenture for
Future Subsidiary Guarantors...............................80
SECTION 11.07. Non-Impairment........................................................81
ARTICLE XII
Subordination of the Subsidiary Guarantees
SECTION 12.01. Agreement To Subordinate..............................................81
SECTION 12.02. Liquidation, Dissolution, Bankruptcy..................................81
SECTION 12.03. Default on Bank Indebtedness of a Subsidiary Guarantor................81
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SECTION 12.04. Demand for Payment....................................................83
SECTION 12.05. When Distribution Must Be Paid Over...................................83
SECTION 12.06. Subrogation...........................................................83
SECTION 12.07. Relative Rights.......................................................83
SECTION 12.08. Subordination May Not Be Impaired by a Subsidiary Guarantor...........83
SECTION 12.09. Rights of Trustee and Paying Agent....................................84
SECTION 12.10. Distribution or Notice to Representative..............................84
SECTION 12.11. Article 12 Not To Prevent Events of Default or
Limit Right To Accelerate..................................84
SECTION 12.12. Trustee Entitled To Rely..............................................84
SECTION 12.13. Trustee To Effectuate Subordination...................................85
SECTION 12.14. Trustee Not Fiduciary for Holders of
Senior Indebtedness of a Subsidiary Guarantor..............85
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Subsidiary Guarantor on Subordination Provisions...........85
SECTION 12.16. Defeasance............................................................86
ARTICLE XIII
Representations and Warranties
SECTION 13.01. Representations and Warranties of the Company
and the Subsidiary Guarantors. ............................86
ARTICLE XIV
Conditions Precedent
SECTION 14.01. Conditions Precedent to Issuance of the Securities....................92
ARTICLE XV
Collateral and Security
SECTION 15.01. Security Documents....................................................96
SECTION 15.02. Recording and Opinions................................................97
SECTION 15.03. Release of Collateral.................................................97
SECTION 15.04. Certificates and Opinions of Counsel..................................99
SECTION 15.05. Certificates of the Trustee...........................................99
SECTION 15.06. Authorization of Actions to Be Taken by the
Trustee Under the Security Documents.......................99
SECTION 15.07. Authorization of Receipt of Funds by the Trustee
Under the Security Documents..............................100
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SECTION 15.08. Termination of Security Interest.....................................100
SECTION 15.09. Collateral Agent.....................................................100
SECTION 15.10. Designations.........................................................101
ARTICLE XVI
Miscellaneous
SECTION 16.01. Trust Indenture Act Controls.........................................102
SECTION 16.02. Notices..............................................................102
SECTION 16.03. Communication by Holders with Other Holders..........................103
SECTION 16.04. Certificate and Opinion as to Conditions Precedent...................103
SECTION 16.05. Statements Required in Certificate or Opinion........................103
SECTION 16.06. When Securities Disregarded..........................................103
SECTION 16.07. Rules by Trustee, Paying Agent and Registrar.........................104
SECTION 16.08. Legal Holidays.......................................................104
SECTION 16.09. GOVERNING LAW........................................................104
SECTION 16.10. No Recourse Against Others...........................................104
SECTION 16.11. Successors...........................................................104
SECTION 16.12. Multiple Originals...................................................104
SECTION 16.13. Table of Contents; Headings..........................................104
Appendix A - Provisions Relating to Securities
Exhibit A - Form of Security
Exhibit B - Form of Supplemental Indenture
Exhibit C - Form of Transferee Letter of Representation
Schedule 13.01(e) - Mortgaged Property
Schedule 13.01(f) - Litigation and Environmental Matters
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INDENTURE dated as of [December 31, 2002],
among WKI HOLDING COMPANY, INC., a Delaware
corporation (the "Company"), each entity listed on
Schedule 1 hereto (collectively, the "Subsidiary
Guarantors") and STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust company, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
12% Senior Subordinated Notes due 20[09] issued on the date hereof (the
"Securities"). Except as otherwise provided herein, the Securities will be
limited to $123,150,000 in aggregate principal amount outstanding and issued
with provisions as set forth in Appendix A hereto (the "Appendix").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Additional Assets" means (a) any property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Permitted Business; (b) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; or (c) Capital Stock
constituting a minority interest in any Person that at such time is a Restricted
Subsidiary; provided, however, that any such Restricted Subsidiary described in
clauses (b) or (c) above is primarily engaged in a Permitted Business.
"Administrative Agent" means JPMorgan Chase Bank, in its
capacity as administrative agent under this Indenture and any successors in such
capacity.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings
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correlative to the foregoing; provided, however, that no Person shall be deemed
an Affiliate solely as a result of participation in the Stockholders' Agreement.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (b) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or (c)
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary (other
than, in the case of (a), (b) and (c) above, (i) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Wholly Owned Subsidiary, (ii) for purposes of Section 4.06 only, a disposition
that constitutes a Restricted Payment permitted by Section 4.04, (iii) a
disposition of assets with a Fair Market Value of less than $2 million, (iv) any
exchange of like-kind property of the type described in Section 1031 of the Code
and (v) leases or subleases of property made in the ordinary course of
business).
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
implicit interest rate for such Sale/Leaseback Transaction, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (a) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b) the sum of
all such payments.
"Bank Indebtedness" means any and all amounts payable under or
in respect of the Credit Agreements and any Refinancing Indebtedness with
respect thereto, as amended from time to time, including principal, premium (if
any), interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, guarantees and all other amounts
payable thereunder or in respect thereof.
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"Bankruptcy Court" means the United States Bankruptcy Court
for the Northern District of Illinois, Eastern Division (together with all
courts having appellate jurisdiction therefrom).
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of the Board
of Directors of the Company.
"Xxxxxx Credit Agreement" means the Amended and Restated
Credit Agreement dated as of April 12, 2001, as amended from time to time,
between the Company and Xxxxxx, Inc. and all documents relating thereto.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Change of Control" means the occurrence of any of the
following events:
(a) (i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted
Holders, is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that for purposes of
this clause (a) such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company and (ii) the Permitted Holders
do not have the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the board of directors
of the Company (for the purposes of this clause (a), the Permitted
Holders or such other person shall be deemed to beneficially own any
Voting Stock of a specified entity held by a parent entity, if such
other person is the beneficial owner (as defined in this clause (a)),
directly or indirectly, of more than 50% of the voting power of the
Voting Stock of such
4
parent entity and the Permitted Holders do not have the right or
ability by voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such parent
entity);
(b) during any period of two consecutive years, individuals
who at the beginning of such period constituted the board of directors
of the Company (together with any new directors whose election by such
board of directors of the Company or whose nomination for election by
the shareholders of the Company was approved by a vote of a majority of
the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of the
Company then in office;
(c) the adoption of a plan relating to the liquidation or
dissolution of the Company; or
(d) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company to another Person (other than a Person that is controlled by
the Permitted Holders), and, in the case of any such merger or
consolidation, the securities of the Company that are outstanding
immediately prior to such transaction and which represent 100% of the
aggregate voting power of the Voting Stock of the Company are changed
into or exchanged for cash, securities or property, unless pursuant to
such transaction such securities are changed into or exchanged for, in
addition to any other consideration, securities of the surviving Person
or transferee that represent immediately after such transaction, at
least a majority of the aggregate voting power of the Voting Stock of
the surviving Person or transferee.
"Class 6 Creditors" means the Class 6 Creditors as defined in
the Disclosure Statement.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" means JPMorgan Chase Bank, as defined in
the Security Documents, acting in its capacity as Collateral Agent under the
Security Documents on behalf of the Holders.
"Collateral and Guarantee Requirement" means the requirement
that:
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(a) the Collateral Agent shall have received from each of the
Company and Subsidiary Guarantors either (i) a counterpart of the Third
Priority Collateral Agreement duly executed and delivered on behalf of
such party or (ii) in the case of any Person that becomes a Subsidiary
Guarantor after the Effective Date, a supplement to the Third Priority
Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such party;
(b) all outstanding Equity Interests of each Subsidiary owned
by or on behalf of any of the Company and Subsidiary Guarantors shall
have been pledged pursuant to the Third Priority Collateral Agreement
(except that such parties shall not be required to pledge (i) more than
65% of the outstanding voting Equity Interests of any Foreign
Subsidiary and (ii) Equity Interests to the extent that a pledge of
such Equity Interests (x) is prohibited by law or (y) in the case of
Equity Interests of any Subsidiary in existence on the Closing Date
that is not wholly-owned (directly or indirectly), is prohibited by the
organizational documents of such Subsidiary or stockholder or similar
agreement applicable to such Subsidiary, in each case as in effect on
the Closing Date (to the extent required pursuant to the Credit
Agreements, in each case as confirmed by an opinion of counsel to the
Company in form and substance reasonably satisfactory to the Collateral
Agent) and the Collateral Agent shall have received certificates or
other instruments representing all such Equity Interests, together with
stock powers or other instruments of transfer with respect thereto
endorsed in blank;
(c) all Indebtedness of the Company and each Subsidiary
Guarantor owing to any of the Company or Subsidiary Guarantors shall be
evidenced by a promissory note, to the extent required pursuant to the
Credit Agreements, and shall have been pledged pursuant to the Third
Priority Collateral Agreement and the Collateral Agent shall have
received all such promissory notes, together with instruments of
transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded
to create the Liens intended to be created by the Third Priority
Collateral Agreement and perfect such Liens to the extent required by,
and with the priority required by, the Third Priority Collateral
Agreement, shall have been filed, registered or recorded or delivered
to the Collateral Agent for filing, registration or recording;
(e) the Collateral Agent shall have received (i) counterparts
of a Third Priority Mortgage with respect to each Mortgaged Property
duly executed and delivered by the record owner of such Mortgaged
Property and (ii) to the extent any of the following are issued or
provided in connection with the Credit Agreements, (x) a policy or
policies of title insurance issued by a nationally
6
recognized title insurance company insuring the Lien of each such Third
Priority Mortgage as a valid Lien on the Mortgaged Property described
therein, free of any other Liens except as expressly permitted by
Section 4.14, together with such endorsements, coinsurance and
reinsurance as the Collateral Agent may reasonably request, and (y)
such surveys, abstracts, appraisals, legal opinions and other documents
as the Collateral Agent may reasonably request with respect to any such
Third Priority Mortgage or Mortgaged Property;
(f) each of the Company and Subsidiary Guarantors shall have
obtained all consents and approvals required to be obtained by it in
connection with the execution and delivery of all Security Documents to
which it is a party, the performance of its obligations thereunder and
the granting by it of the Liens thereunder; and
(g) the Intercreditor Agreement shall have been duly executed
and delivered on behalf of each party thereto.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters for which the Company has prepared
financial statements to (b) Consolidated Interest Expense for such four fiscal
quarters; provided, however, that (i) if the Company or any Restricted
Subsidiary has Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence
of Indebtedness, EBITDA and Consolidated Interest Expense 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 Restricted
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 Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense 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 Restricted Subsidiary has
not earned the interest income actually earned
7
during such period in respect of cash or Temporary Cash Investments used to
repay, repurchase, defease or otherwise discharge such Indebtedness, (iii) if
since the beginning of such period the Company or any Restricted Subsidiary
shall have made any Asset Disposition, the EBITDA for such period shall be
reduced by an amount equal to the EBITDA (if positive) directly attributable to
the assets that are the subject of such Asset Disposition for such period or
increased by an amount equal to the EBITDA (if negative) directly attributable
thereto for such period and Consolidated Interest Expense for such period shall
be reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted Subsidiary
repaid, repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale), (iv) if since the beginning of such period the
Company or any Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person that becomes a Restricted
Subsidiary) or an acquisition of assets, including any acquisition of assets
occurring in connection with a transaction causing a calculation to be made
hereunder, which constitutes all or substantially all of an operating unit of a
business, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the Incurrence of
any Indebtedness) as if such Investment or acquisition occurred on the first day
of such period and (v) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall
have made any Asset Disposition or any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (iii) or (iv) above if made
by the Company or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
pro forma effect thereto as if such Asset Disposition, Investment or acquisition
of assets occurred on the first day of such period. For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting Officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on 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 as at the
date of determination in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its Consolidated Restricted
Subsidiaries, plus, to the extent
8
Incurred by the Company and its Subsidiaries in such period but not included in
such interest expense, without duplication (a) interest expense attributable to
Capitalized Lease Obligations and the interest expense attributable to leases
constituting part of a Sale/Leaseback Transaction, (b) amortization of debt
discount and debt issuance costs, (c) capitalized interest, (d) noncash interest
expense, (e) commissions, discounts and other fees and charges attributable to
letters of credit and bankers' acceptance financing, (f) interest accruing on
any Indebtedness of any other Person to the extent such Indebtedness is
Guaranteed by the Company or any Restricted Subsidiary; (g) net costs associated
with Hedging Obligations (including amortization of fees), (h) dividends in
respect of all Disqualified Stock of the Company and all Preferred Stock of any
of the Subsidiaries of the Company, to the extent held by Persons other than the
Company or a Wholly Owned Subsidiary, (i) interest Incurred in connection with
investments in discontinued operations, and (j) the cash contributions to any
employee stock ownership plan or similar trust to the extent such contributions
are used by such plan or trust to pay interest or fees to any Person (other than
the Company) in connection with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net
income of the Company and its Consolidated Subsidiaries for such period;
provided, however, that there shall not be included in such Consolidated Net
Income:
(a) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that (i) subject to
the limitations contained in clause (d) below, the Company's equity in
the net income of any such Person for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the Company
or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution made to a
Restricted Subsidiary, to the limitations contained in clause (c)
below) and (ii) the Company's equity in a net loss of any such Person
for such period shall be included in determining such Consolidated Net
Income;
(b) any net income (or loss) of any Person acquired by the
Company or a Subsidiary of the Company in a pooling of interests
transaction for any period prior to the date of such acquisition;
(c) any net income (or loss) of any Restricted Subsidiary if
such Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Company,
except that (i) subject to the limitations contained in clause (d)
below, the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Restricted Subsidiary
9
during such period to the Company or another Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution made to another Restricted Subsidiary, to the
limitation contained in this clause) and (ii) the Company's equity in a
net loss of any such Restricted Subsidiary for such period shall be
included in determining such Consolidated Net Income;
(d) any gain or loss realized upon the sale or other
disposition of any asset or business of the Company or its Consolidated
Subsidiaries (including pursuant to any Sale/Leaseback Transaction)
that is not sold or otherwise disposed of in the ordinary course of
business and any gain or loss realized upon the sale or other
disposition of any Capital Stock of any Person;
(e) any extraordinary gain or loss; and
(f) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under such
Section pursuant to clause (a)(iv)(3)(D) thereof.
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its Restricted Subsidiaries, determined
on a Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending prior to the taking of any action for the purpose of which the
determination is being made and for which the Company has prepared financial
statements, as (a) the par or stated value of all outstanding Capital Stock of
the Company plus (b) paid-in capital or capital surplus relating to such Capital
Stock plus (c) any retained earnings or earned surplus less (i) any accumulated
deficit and (ii) any amounts attributable to Disqualified Stock.
"Consolidated Total Assets" means the total assets shown on
the balance sheet of the Company and its Restricted Subsidiaries, determined on
a Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending prior to the taking of any action for the purpose of which the
determination is being made and for which the Company has prepared financial
statements,
"Consolidation" means the consolidation of the amounts of each
of the Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any
10
Restricted Subsidiary in an Unrestricted Subsidiary shall be accounted for as an
investment. The term "Consolidated" has a correlative meaning.
"Credit Agreements" means the Senior Secured Revolving Credit
Agreement and the Senior Secured Term Loan Credit Agreement, in each case as
amended, restated, supplemented, waived, replaced (whether or not upon
termination), restructured, refinanced or otherwise modified from time to time
(except to the extent that any such amendment, restatement, supplement, waiver,
replacement, restructuring or refinancing or other modification thereto would be
prohibited by the terms of this Indenture, unless otherwise agreed to by the
Holders of at least a majority in aggregate principal amount of Securities at
the time outstanding), and in each case including any guarantees, collateral
documents, instruments and agreements executed in connection therewith.
"Credit Agreement Obligations" means (a) all Bank Indebtedness
and all other Indebtedness outstanding under one or more of any other First Lien
Credit Facility or Second Lien Credit Facility that constitutes Permitted Debt
or is otherwise permitted under Section 4.03 and that is designated as "Credit
Agreement Obligations" for purposes of this Indenture and is secured by a
Permitted Lien described in clause (g) of the definition thereof, (b) all other
obligations (not constituting Indebtedness) of the Company or a Subsidiary
Guarantor under the Senior Secured Revolving Credit Agreement or any such other
First Lien Credit Facility and (c) all other obligations (not constituting
Indebtedness) of the Company or a Restricted Subsidiary under the Senior Secured
Tranche B Term Loan Credit Agreement or any such other Second Lien Credit
Facility.
"Credit Facilities" means one or more debt facilities
(including the Credit Agreements) or commercial paper facilities, providing for
revolving credit loans, term loans, receivables financing (including through the
sale of receivables to lenders or to special purpose entities formed to borrow
from lenders against such receivables) or letters of credit, or any debt
securities or other form of debt financing (including convertible or
exchangeable debt instruments), in each case, as amended, supplemented,
modified, extended, renewed, restated or refunded in whole or in part from time
to time.
"Currency Agreement" means with respect to any Person any
foreign exchange contract, currency swap agreements or other similar agreement
or arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DIP Credit Agreement" means the Revolving Credit and
Guarantee Agreement dated as of May 31, 2002, as amended from time to time,
among WKI
11
Holding Company, Inc., the subsidiaries party thereto, JPMorgan Chase Bank as
administrative agent and the lenders party thereto and all documents related
thereto.
"Disclosure Statement" means the disclosure statement filed in
connection with the Plan, as amended through the effective date of the Plan.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (c) is redeemable at the option of the
holder thereof, in whole or in part, in the case of each of clauses (a), (b) and
(c) on or prior to the 91st day after the Stated Maturity of the Securities;
provided, however, that any Capital Stock that would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to require
such Person to repurchase or redeem such Capital Stock upon the occurrence of an
"asset sale" or "change of control" occurring prior to the 91st day after the
Stated Maturity of the Securities shall not constitute Disqualified Stock if the
"asset sale" or "change of control" provisions applicable to such Capital Stock
are not more favorable to the holders of such Capital Stock than the provisions
of Sections 4.06 and 4.08.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.
"EBITDA" for any period means the Consolidated Net Income for
such period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of the Company
and its Consolidated Restricted Subsidiaries, (b) Consolidated Interest Expense,
(c) depreciation expense of the Company and its Consolidated Restricted
Subsidiaries and (d) amortization expense of the Company and its Consolidated
Restricted Subsidiaries including amortization of goodwill (excluding
amortization expense attributable to a prepaid cash item that was paid in a
prior period) and (e) all other noncash charges of the Company and its
Consolidated Restricted Subsidiaries (excluding any such noncash charge to the
extent that it represents an accrual of or reserve for cash expenditures in any
future period), in each case for such period, and (f) to the extent Incurred in
the year 2003 and pursuant to the Disclosure Statement and the Plan, (i) fees
and expenses in connection with the Plan and (ii) payments with respect to the
key employee retention plan contemplated thereby. Notwithstanding the foregoing,
the provision for taxes based on the income or profits of, and the depreciation
and amortization and noncash charges of, a Restricted Subsidiary of the Company
shall be added to Consolidated Net Income to compute EBITDA only to the extent
(and in the same proportion) that the net income of such Restricted Subsidiary
was included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such
12
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, statutes, permits, licenses, authorizations, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the presence,
management, or Release of any Hazardous Material or to health and safety
matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of investigation or
environmental remediation, costs of enforcement proceedings, fines, penalties or
indemnities), of the Company or any Subsidiary Guarantor directly or indirectly
resulting from or based upon (a) compliance or violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the actual or alleged presence or Release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Pension Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Pension Plan; (d) the incurrence by the Company or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Pension Plan; (e) the receipt by the Company
or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Pension Plan or Pension Plans or to
appoint a trustee to administer any Pension Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal
13
from any Pension Plan or Multiemployer Plan; or (g) the receipt by the Company
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from the Company or any ERISA Affiliate of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Exchange Act" means the Securities Exchange Act of 1934.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. For purposes of Section 4.06, the Fair Market Value of property or
assets other than cash which involves an aggregate amount in excess of $3
million, shall be set forth in a resolution approved by at least a majority of
the Board of Directors.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"Financing Transactions" means (a) the execution, delivery and
performance by each of the Company and the Subsidiary Guarantors of the Loan
Documents to which it is to be a party, the borrowings under the Credit
Agreements, the use of the proceeds thereof and the issuance of letters of
credit thereunder and (b) the execution, delivery and performance by each of the
Company and the Subsidiary Guarantors of this Indenture and the Security
Documents to which it is to be a party, the issuance of the Securities and the
use of the proceeds thereof.
"First Lien Credit Facilities" means (a) the Credit Facility
establishing the Senior Secured Revolving Credit Agreement and (b) any other
Credit Facility that, in the case of both clauses (a) and (b), is secured by a
Permitted Lien described in clause (g) of the definition thereof and, except for
the Credit Facility establishing the Senior Secured Revolving Credit Agreement,
is designated by the Issuers as a "First Lien Credit Facility" for the purposes
of this Indenture.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Company that is not organized under the laws of the United States of America or
any State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United
14
States of America as in effect from time to time, including those set forth in
(a) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) statements and
pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Hazardous Materials" means all (a) explosive, radioactive,
hazardous or toxic substances, materials, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and (b) other
substances, materials, chemicals or wastes that in relevant form or
concentration are limited, prohibited or regulated pursuant to any Environmental
Law.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Security is
registered on the
15
Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary. The term "Incurrence"
when used as a noun shall have a correlative meaning. The accretion of principal
of a non-interest bearing or other discount security shall be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(c) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto);
(d) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables),
which purchase price is due more than six months after the date of
placing such property in service or taking delivery and title thereto
or the completion of such services;
(e) all Capitalized Lease Obligations and all Attributable
Debt of such Person;
(f) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of such
Person shall be the lesser of (i) the Fair Market Value of such asset
at such date of determination and (ii) the amount of such Indebtedness
of such other Persons;
(h) net Hedging Obligations of such Person; and
16
(i) all obligations of the type referred to in clauses (a)
through (h) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Intercreditor Agreement" means the Intercreditor Agreement
dated [December 31, 2002] among the Company, the Subsidiary Guarantors, the
collateral agents under the Credit Agreements and the Administrative Agent,
substantially in the form of Exhibit E to the Credit Agreements.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, int__est rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if positive)
equal to (i) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (ii) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and (b) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value
at the time of such transfer.
17
"Issue Date" means the date on which such Securities are
originally issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Loan Documents" means the Credit Agreements and the
Intercreditor Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, properties, assets, condition (financial or
otherwise), liabilities (including contingent liabilities) or prospects of the
Company and its Subsidiaries, taken as a whole, (b) the ability of any of the
Company or Subsidiary Guarantors to perform any of its obligations under this
Indenture, the Securities, the Security Documents or the Disclosure Statement or
(c) the rights of or benefits available to the Holders under any of this
Indenture, the Securities, the Security Documents or the Disclosure Statement.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
"Mortgaged Property" means, initially, each parcel of real
property and the improvements thereto owned by any of the Company or the
Subsidiary Guarantors and disclosed on Schedule 13.01(e) hereto, and includes
each other parcel of real property and improvements thereto with respect to
which a Third Priority Mortgage is granted.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets that are
the subject of such Asset Disposition or received in any other non-cash form)
therefrom, in each case net of (a) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (b) all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the proceeds from such Asset Disposition, (c)
all
18
distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition
and (d) appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or
other assets disposed of in such Asset Disposition and retained by the Company
or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Obligations" has the meaning assigned to such term in the
Third Priority Collateral Agreement.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company. "Officer" of a Subsidiary Guarantor
has a correlative meaning.
"Officers' Certificate" means a certificate signed by two
Officers.
"Old Credit Agreement" means the Amended and Restated Credit
Agreement dated as of April 12, 2001, as amended from time to time, among the
Company, JPMorgan Chase Bank, Citibank, N.A., Bankers Trust Company and the
lenders party thereto and all documents related thereto.
"Old Subsidiaries" means the subsidiaries of Old WKI that,
prior to the Reorganization, are debtors-in-possession under the Bankruptcy
Code.
"Old WKI" means WKI Holding Company, Inc., a Delaware
corporation that, prior to the Reorganization, is a debtor-in-possession under
the Bankruptcy Code.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company, a Subsidiary Guarantor or the Trustee.
"Order" means the order or orders of the Bankruptcy Court
confirming the Plan and approving the Reorganization, the Financing Transactions
and all related documentation contemplated thereby.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and
19
defined in ERISA and any successor entity performing similar functions.
"Pension Plan" means any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Company or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Perfection Certificate" means a certificate in the form of
Exhibit [ ] to the Third Priority Collateral Agreement or any other form
approved by the Collateral Agent.
"Permitted Business" means any business engaged in by the
Company or any Restricted Subsidiary on the Closing Date and any Related
Business.
"Permitted Holders" means the Class 6 Creditors acting
pursuant to the Stockholders' Agreement, and any Person acting in the capacity
of an underwriter in connection with a public or private offering of the
Company's Capital Stock.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (a) the Company, a Restricted Subsidiary or a
Person that will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such Restricted
Subsidiary is a Permitted Business; (b) another Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Permitted Business; (c) cash and Temporary Cash Investments; (d) receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (e) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (f) stock, obligations or securities received in settlement
of debts created in the ordinary course of business and owing to the Company or
any Restricted Subsidiary or in satisfaction of judgments; (g) any Person to the
extent such Investment represents the non-cash portion of the consideration
received for an Asset Disposition that was made pursuant to and in compliance
with Section 4.06; (h) Investments existing on the Closing Date; and (i)
Investments (other than Investments permitted pursuant to any other clause of
this definition) in an aggregate principal amount not to exceed 5% of
Consolidated Total Assets.
20
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws or similar legislation, obligations to utility
companies or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such Person is a
party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or appeal
bonds to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case Incurred in the
ordinary course of business; (b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person shall
then be proceeding with an appeal or other proceedings for review; (c) Liens for
property taxes not yet due or payable or subject to penalties for non-payment or
which are being contested in good faith by appropriate proceedings; (d) Liens in
favor of issuers of surety bonds or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business; provided, however, that such letters of credit do not constitute
Indebtedness; (e) minor survey exceptions, minor encumbrances, easements, or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real property or Liens incidental
to the conduct of the business of such Person or to the ownership of its
properties which were not Incurred in connection with Indebtedness and which do
not in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person; (f)
Liens to secure Indebtedness permitted pursuant to Section 4.03(a), 4.03(b)(i)
or 4.03(b)(vi); (g) Liens to secure not in excess of $5 million of Indebtedness
permitted pursuant to Section 4.03(b)(vii); (h) Liens existing on the Closing
Date (including any such Liens securing Indebtedness issued pursuant to the
Plan); (i) Liens on property or shares of Capital Stock of another Person at the
time such other Person becomes a Subsidiary of such Person; provided, however,
that such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens do not extend to any other property owned by
such Person or any of its Subsidiaries; (j) Liens on property at the time such
Person or any of its Subsidiaries acquires the property, including any
acquisition by means of a merger or consolidation with or into such Person or a
Subsidiary of such Person; provided, however, that such Liens are not created,
Incurred or assumed in connection with, or in contemplation of, such
acquisition; provided further, however, that the Liens may not extend to any
other property owned by such Person or any of its Subsidiaries; (k) Liens
securing Indebtedness or other obligations of a Subsidiary of such Person owing
to such Person or a Wholly Owned Subsidiary of such Person; (l) Liens securing
obligations under Interest Rate Agreements so long as such obligations relate to
Indebtedness that is, and is permitted under this Indenture, to be secured by a
Lien on the same property securing such obligations; (m) Liens created by or
resulting from any litigation or other proceeding that
21
is being contested in good faith by appropriate proceedings, including Liens
arising out of judgments or awards against the Company or any Subsidiary with
respect to which the Company or such Subsidiary is in good faith prosecuting an
appeal or proceedings for review or for which the time to make an appeal has not
yet expired; or final unappealable judgment Liens that are satisfied within 15
days of the date of judgment; or Liens incurred by the Company or any Subsidiary
for the purpose of obtaining a stay or discharge in the course of any litigation
or other proceeding to which the Company or such Subsidiary is a party, so long
as in each case any such Lien does not give rise to a Default hereunder or under
the Credit Agreements; and (n) Liens to secure any Refinancing (or successive
Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (h), (i) and (j); provided, however, that
(i) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements to or on such property) and (ii)
the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (1) the outstanding principal amount or, if
greater, committed amount of the Indebtedness secured by Liens described under
clauses (h), (i) or (j) at the time the original Lien became a Permitted Lien
under this Indenture and (2) an amount necessary to pay any fees and expenses,
including premiums, related to such Refinancings.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Plan" means the Second Amended Joint Plan of Reorganization
of World Kitchen, Inc., the Company and its Subsidiary Debtors dated October 18,
2002 and confirmed on November 15, 2002 by an order of the Bankruptcy Court
pursuant to Section 1129 of the United States Bankruptcy Code.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness (a)
consisting of the deferred purchase price of an asset, conditional sale
obligations, obligations under any title retention agreement and other purchase
money obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset
22
being financed, and (b) Incurred to finance the acquisition by the Company or a
Restricted Subsidiary of such asset, including additions and improvements;
provided, however, that such Indebtedness is incurred within 180 days after the
acquisition by the Company or such Restricted Subsidiary of such asset.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance
with this Indenture including Indebtedness of the Company that Refinances
Refinancing Indebtedness; provided, however, that (a) the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced, (b) the Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being refinanced, (c) except
with respect to any Bank Indebtedness permitted pursuant to Section 4.03(b)(i),
such Refinancing Indebtedness is Incurred in an aggregate principal amount (or
if issued with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being Refinanced and (d) if the Indebtedness being refinanced is subordinated in
right of payment to the Securities, such Refinancing Indebtedness is
subordinated in right of payment to the Securities at least to the same extent
as the Indebtedness being Refinanced; provided further, however, that
Refinancing Indebtedness shall not include (i) Indebtedness of a Restricted
Subsidiary that Refinances Indebtedness of the Company or (ii) Indebtedness of
the Company or a Restricted Subsidiary that Refinances Indebtedness of an
Unrestricted Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Closing Date.
"Release" means any actual or threatened release, spill,
emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into the environment (including ambient air,
surface water, groundwater, land surface or subsurface strata) or within any
building, structure, facility or fixture.
"Reorganization" has the meaning assigned to such term in the
Plan.
"Representative" means the trustee, agent or representative
(if any) for an
23
issue of Senior Indebtedness.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or a Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Second Lien Credit Facilities" means (a) the Credit Facility
establishing the Senior Secured Term Loan Credit Agreement and (b) any other
Credit Facility that, in the case of both clauses (a) and (b), is secured by a
Permitted Lien described in clause (g) of the definition thereof and, except for
the Credit Facility establishing the Senior Secured Term Loan Credit Agreement,
is designated by the Company as a "Second Lien Credit Facility" for the purposes
of this Indenture.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien. "Secured Indebtedness" of a Subsidiary Guarantor has a
correlative meaning.
"Security Documents" means the Intercreditor Agreement, the
Third Priority Collateral Agreement, the Third Priority Mortgages and any other
document or instrument pursuant to which a Lien is granted by the Company or any
of the Subsidiary Guarantors to secure any Obligations or under which rights or
remedies with respect to such Lien are governed, as such agreements may be
amended, modified or supplemented from time to time.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" of the Company or any Subsidiary
Guarantor means the principal of, premium (if any) and accrued and unpaid
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization of the Company or any Subsidiary Guarantor,
regardless of whether or not a claim for post-filing interest is allowed in such
proceedings) and fees and other amounts owing in respect of, Bank Indebtedness
and all other Indebtedness of the Company or any Subsidiary Guarantor, whether
outstanding on the Closing Date or thereafter Incurred, unless in the instrument
creating or evidencing the same or pursuant to which the same is outstanding it
is provided that such obligations are subordinated in right of payment to the
24
Securities or such Subsidiary Guarantor's Subsidiary Guarantee; provided,
however, that Senior Indebtedness shall not include (a) any obligation of the
Company to any Subsidiary of the Company or of such Subsidiary Guarantor to the
Company or any other Subsidiary of the Company, (b) any liability for Federal,
state, local or other taxes owed or owing by the Company or such Subsidiary
Guarantor, (c) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities), (d) any Indebtedness or obligation of
the Company or such Subsidiary Guarantor (and any accrued and unpaid interest in
respect thereof) that by its terms is subordinate or junior in any respect to
any other Indebtedness or obligation of the Company or such Subsidiary
Guarantor, including any Senior Subordinated Indebtedness and any Subordinated
Obligations, (e) any obligations with respect to any Capital Stock or (f) any
Indebtedness Incurred in violation of this Indenture.
"Senior Secured Revolving Credit Agreement" means the
revolving facility credit agreement dated [December 31, 2002] among the Company,
the subsidiaries party thereto, JPMorgan Chase Bank as administrative agent and
the lenders party thereto.
"Senior Secured Term Loan Credit Agreement" means the term
loan credit agreement dated [December 31, 2002] among the Company, the
subsidiaries party thereto, JPMorgan Chase Bank as administrative agent and the
lenders party thereto.
"Senior Subordinated Indebtedness" of the Company means the
Securities and any other Indebtedness of the Company that specifically provides
that such Indebtedness is to rank pari passu with the Securities in right of
payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Company which is not Senior
Indebtedness. "Senior Subordinated Indebtedness" of a Subsidiary Guarantor has a
correlative meaning.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Stockholders' Agreement" means the stockholders' and
registration rights agreement deemed to become effective as of the effective
date of the Plan among the
25
Company and each Person receiving new common stock pursuant to the Plan.
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement. "Subordinated Obligation" of a Subsidiary Guarantor has a
correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person
and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of
such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations
with respect to the Securities issued by a Domestic Subsidiary of the Company
pursuant to the terms of this Indenture.
"Subsidiary Guarantor" means any Domestic Subsidiary that has
issued a Subsidiary Guarantee.
"Temporary Cash Investments" means any of the following: (a)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof, (b) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and
undivided profits aggregating in excess of $250,000,000 (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act), (c)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above, (d) investments in
commercial paper, maturing not more than 90 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher) according to
Xxxxx'x Investors Service, Inc. or "A-1" (or higher) according to Standard and
Poor's Ratings Service, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"),
and (e) investments in securities with maturities of six months or less from the
date of acquisition issued or fully
26
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or "A" by Xxxxx'x Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 X.X.X.xx.xx.
77aaa-77bbbb) as in effect on the Closing Date.
"Third Priority Collateral Agreement" means the Third Priority
Guarantee and Collateral Agreement dated [December 31, 2002] among the Company,
the Subsidiary Guarantors and the Collateral Agent.
"Third Priority Mortgage" means a mortgage, deed of trust,
assignment of leases and rents, leasehold mortgage or other security document
granting a Lien on any Mortgaged Property to secure the Securities. Each Third
Priority Mortgage shall be reasonably satisfactory in form and substance to the
Administrative Agent.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Transactions" means the Reorganization and the Financing
Transactions.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" 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.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (b) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (i) the Subsidiary to be so
designated has total Consolidated assets of $1,000 or less or (ii) if such
Subsidiary has
27
Consolidated assets greater than $1,000, then such designation would be
permitted under Section 4.04. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation (a) the Company could Incur
$1.00 of additional Indebtedness under Section 4.03(a) and (b) no Default shall
have occurred and be continuing. Any such designation of a Subsidiary as a
Restricted Subsidiary or Unrestricted Subsidiary by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction".......................... 4.07(a)
"Appendix"....................................... Preamble
"Bankruptcy Law"................................. 6.01
"beneficially own"............................... 1.01
"Blockage Notice"................................ 10.03
"Change of Control Offer"........................ 4.08(b)
"Collateral"..................................... 13.01(q)
"covenant defeasance option"..................... 8.01(b)
28
Defined in
Term Section
---- ----------
"Custodian"...................................... 6.01
"Definitive Securities".......................... Appendix A
"Event of Default"............................... 6.01
"Global Securities".............................. Appendix A
"Guarantee Blockage Notice"...................... 12.03
"Guarantee Payment Blockage Period".............. 12.03
"Guaranteed Obligations"......................... 11.01
"incorporated provision"......................... 16.01
"Indemnitee"..................................... 4.17
"Information".................................... 4.02
"legal defeasance option"........................ 8.01(b)
"Legal Holiday".................................. 16.08
"Notice of Default".............................. 6.01
"Offer".......................................... 4.06(b)
"Offer Amount"................................... 4.06(c)(ii)
"Offer Period"................................... 4.06(c)(ii)
"pay its Guarantee".............................. 12.03
"pay the Securities"............................. 10.03
"Paying Agent"................................... 2.03
"Payment Blockage Period"........................ 10.03
"protected purchaser"............................ 2.07
"Purchase Date".................................. 4.06(c)(i)
"Registrar"...................................... 2.03
"Restricted Payment"............................. 4.04(a)
"Securities Custodian"........................... Appendix A
"Successor Company".............................. 5.01(a)
"Transaction Documents".......................... 13.01(b)
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary
Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
29
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Subsidiary Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(h) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. Provisions relating to the
Securities
30
are set forth in the Appendix, which is hereby incorporated in and expressly
made a part of this Indenture. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company or any Subsidiary Guarantor is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Security shall be
dated the date of its authentication. The Securities shall be issuable only in
registered form without interest coupons and only in denominations of $1,000 and
integral multiples thereof.
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may, with the prior approval of the Company,
appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Securities. Any such appointment shall be evidenced by an
instrument signed by a Trust Officer, a copy of which shall be furnished to the
Company. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. (a) The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent, and the term "Registrar" includes any co-registrars. The Company
initially appoints the Trustee as (i) Registrar and Paying Agent in connection
with the Securities and (ii) the Securities Custodian with respect to the Global
Securities.
31
(b) The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically organized Wholly Owned Subsidiaries may act
as Paying Agent or Registrar.
(c) The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Company and the Trustee.
SECTION 2.04. Paying Agent to Hold Money in Trust. Prior to or
on each due date of the principal of and interest on any Security, the Company
shall deposit with the Paying Agent (or if the Company or a Wholly Owned
Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal
and interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal of and interest on the Securities, and shall
notify the Trustee of any default by the Company in making any such payment. If
the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by the Paying Agent.
Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in
32
registered form and shall be transferable only upon the surrender of a Security
for registration of transfer and in compliance with the Appendix. When a
Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Company may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Company shall not be required
to make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Subsidiary Guarantors, the Trustee, the Paying
Agent, and the Registrar may deem and treat the Person in whose name a Security
is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and (subject to paragraph 2 of the Securities)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, any Subsidiary
Guarantor, the Trustee, the Paying Agent, or the Registrar shall be affected by
notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
satisfies the Company or the Trustee within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (b) makes such
request to the Company or the Trustee prior to the Security
33
being acquired by a protected purchaser as defined in Section 8-303 of the
Uniform Commercial Code (a "protected purchaser") and (c) satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Trustee to protect the Company, the Trustee, the Paying Agent and the
Registrar from any loss that any of them may suffer if a Security is replaced.
The Company and the Trustee may charge the Holder for their expenses in
replacing a Security. In the event any such mutilated, lost, destroyed or
wrongfully taken Security has become or is about to become due and payable, the
Company in its discretion may pay such Security instead of issuing a new
Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.08. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. Subject to Section 16.06, a Security does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture, then on and after
that date such Securities (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. In the event that
Definitive Securities are to be issued under the terms of this Indenture, until
such Definitive Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Securities and deliver them in exchange for temporary Securities upon
surrender of such temporary Securities at the office or agency
34
of the Company, without charge to the Holder.
SECTION 2.10. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and shall dispose of canceled Securities in accordance with its
customary procedures or deliver canceled Securities to the Company pursuant to
written direction by an Officer. The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the
35
Company to the effect that such redemption will comply with the conditions
herein. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that the Trustee in
its sole discretion shall deem to be fair and appropriate. The Trustee shall
make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but
not more than 60 days before a date for redemption of Securities, the Company
shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest
to the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(vii) the CUSIP number, if any, printed on the Securities
being redeemed; and
36
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
(b) At the Company's request, which request shall be provided
to the Trustee in writing at least five days prior to the date on which notice
of redemption is to be given, the Trustee shall give such notice of redemption
in the Company's name and at the Company's expense. In such event, the Company
shall provide the Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date;
provided, however, that if the redemption date is after a regular record date
and on or prior to the interest payment date, the accrued interest shall be
payable to the Holder of the redeemed Securities registered on the relevant
record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 12:00
p.m., New York City time, on the redemption date, the Company shall deposit with
the Paying Agent (or, if the Company or a Wholly Owned Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest on all Securities or portions thereof to be
redeemed on that date other than Securities or portions of Securities called for
redemption that have been delivered by the Company to the Trustee for
cancelation. On and after the redemption date, interest shall cease to accrue on
Securities or portions thereof called for redemption so long as the Company has
deposited with the Paying Agent funds sufficient to pay the principal of, plus
accrued and unpaid interest on, the Securities to be redeemed, unless the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in
37
the Securities and in this Indenture. Principal and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC, and provide the Trustee and
Holders within 15 days after it files them with the SEC, copies of its annual
report and the information, documents and other reports (the "Information") that
it would be required to file with the SEC if it were subject to Section 13 and
15(d) of the Exchange Act; provided, however, that the Company shall not be so
obligated to file such reports with the SEC if the SEC does not permit such
filing, in which event the Company will make the Information available to
prospective purchasers, the Trustee and the Holders. In addition, following a
public equity offering, the Company shall furnish to the Trustee and the
Holders, promptly upon their becoming available, copies of the annual report to
shareholders and any other information provided by the Company to its public
shareholders generally. The Company also shall comply with the other provisions
of Section 314(a) of the TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any
Subsidiary Guarantor may Incur up to $200,000,000 of Senior Indebtedness in
addition to that outstanding pursuant to Section 4.03(b) if on the date of such
Incurrence and after giving effect thereto, the Consolidated Coverage Ratio
would be greater than 2.25 to 1.
(b) Notwithstanding Section 4.03(a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness Incurred pursuant to the Credit
Agreements in an aggregate principal amount not to exceed $300,000,000
at any time outstanding;
(ii) Indebtedness of the Company owed to and held by any
Wholly Owned Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Company or any Wholly Owned Subsidiary; provided,
however, that (1) any subsequent issuance or transfer of any Capital
Stock or any other event that results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Company or a
38
Wholly Owned Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the issuer thereof and (2) if
the Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Securities;
(iii) Indebtedness (1) represented by the Securities and the
Subsidiary Guarantees, (2) outstanding on the Closing Date, including
Indebtedness payable or reinstated pursuant to the Plan (other than the
Indebtedness described in clauses (i) and (ii) above), (3) consisting
of Refinancing Indebtedness Incurred in respect of any Indebtedness
described in this clause (iii) (including Indebtedness Refinancing
Refinancing Indebtedness) or Section 4.03(a) and (4) consisting of
Guarantees of any Indebtedness permitted under clauses (i) and (ii) of
this paragraph (b);
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Company (other than Indebtedness Incurred in
contemplation of, in connection with, as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Subsidiary of or was
otherwise acquired by the Company); provided, however, that on the date
that such Restricted Subsidiary is acquired by the Company, the Company
would have been able to Incur $1.00 of additional Indebtedness pursuant
to Section 4.03(a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (iv) and (2) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this
clause (iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds or any
similar obligations provided by the Company or any Restricted
Subsidiary in the ordinary course of its business, and (2) under
Interest Rate Agreements entered into for bona fide hedging purposes of
the Company in the ordinary course of business; provided, however, that
such Interest Rate Agreements do not increase the Indebtedness of the
Company outstanding at any time other than as a result of fluctuations
in interest rates or by reason of fees, indemnities and compensation
payable thereunder;
(vi) Purchase Money Indebtedness and Capitalized Lease
Obligations in an aggregate principal amount not in excess of $25
million at any time outstanding; or
39
(vii) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to Section 4.03(a) or any other clause of this
Section 4.03(b)) in an aggregate principal amount on the date of
Incurrence that, when added to all other Indebtedness Incurred pursuant
to this clause (vii) and then outstanding, shall not exceed $10
million.
(c) Notwithstanding the foregoing, the Company shall not Incur
any Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are
used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund
or refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such Subordinated
Obligations. A Subsidiary Guarantor shall not Incur any Indebtedness if such
Indebtedness is by its terms expressly subordinate or junior in ranking in any
respect to any Senior Indebtedness of such Subsidiary Guarantor unless such
Indebtedness is Senior Subordinated Indebtedness of such Subsidiary Guarantor or
is expressly subordinated in right of payment to Senior Subordinated
Indebtedness of such Subsidiary Guarantor. In addition, a Subsidiary Guarantor
shall not Incur any Secured Indebtedness that is not Senior Indebtedness of such
Subsidiary Guarantor unless contemporaneously therewith effective provision is
made to secure the Subsidiary Guarantee of such Subsidiary Guarantor equally and
ratably with (or on a senior basis to, in the case of Indebtedness subordinated
in right of payment to such Subsidiary Guarantee) such Secured Indebtedness for
as long as such Secured Indebtedness is secured by a Lien.
(d) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may Incur pursuant to this Section shall not be deemed to be exceeded solely as
a result of fluctuations in the exchange rates of currencies. For purposes of
determining the outstanding principal amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i) Indebtedness Incurred pursuant to
the Credit Agreements prior to or on the Closing Date shall be treated as
Incurred pursuant to Section 4.03(b)(i), (ii) Indebtedness permitted by this
Section 4.03 need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this Section permitting such
Indebtedness and (iii) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section, the Company, in
its sole discretion, shall classify such Indebtedness and only be required to
include the amount of such Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) or similar payment to the direct
or indirect holders of its Capital Stock except dividends or distributions
payable solely in its Capital Stock (other than
40
Disqualified Stock) and except dividends or distributions payable to the Company
or another Restricted Subsidiary (and, if such Restricted Subsidiary has
shareholders other than the Company or other Restricted Subsidiaries, to its
other shareholders on a pro rata basis), (ii) purchase, redeem, retire or
otherwise acquire for value any Capital Stock of the Company or any Restricted
Subsidiary held by Persons other than the Company or another Restricted
Subsidiary, (iii) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment any Subordinated Obligations (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of acquisition) or
(iv) make any Investment (other than a Permitted Investment) in any Person (any
such dividend, distribution, purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Investment being herein referred to as a "Restricted
Payment") if at the time the Company or such Restricted Subsidiary makes such
Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution of the
Board of Directors) declared or made subsequent to the Closing Date
would exceed the sum of, without duplication:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the
fiscal quarter during which the Closing Date occurs to the end
of the most recent fiscal quarter ending prior to the date of
such Restricted Payment (or, in case such Consolidated Net
Income shall be a deficit, minus 100% of such deficit) for
which the Company has prepared financial statements;
(B) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Closing Date (other
than an issuance or sale to (x) a Subsidiary of the Company or
(y) an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries);
41
(C) the amount by which Indebtedness of the Company
or its Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the Closing Date of
any Indebtedness of the Company or its Restricted Subsidiaries
issued after the Closing Date which is convertible or
exchangeable for Capital Stock (other than Disqualified Stock)
of the Company (less the amount of any cash or the Fair Market
Value of other property distributed by the Company or any
Restricted Subsidiary upon such conversion or exchange); and
(D) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (x)
payments of dividends, repayments of the principal of loans or
advances or other transfers of assets to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries or (y)
the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, retirement or other acquisition
or retirement for value of Capital Stock of the Company made by
exchange for, or out of the proceeds of the substantially concurrent
sale of, Capital Stock of the Company (other than Disqualified Stock
and other than Capital Stock issued or sold to a Subsidiary of the
Company or an employee stock ownership plan or other trust established
by the Company or any of its Subsidiaries); provided, however, that (1)
such Restricted Payment shall be excluded in the calculation of the
amount of Restricted Payments and (2) the Net Cash Proceeds from such
sale applied in the manner set forth in this clause (i) shall be
excluded from the calculation of amounts under Section
4.04(a)(iv)(3)(B);
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Indebtedness of the Company that is
permitted to be Incurred pursuant to Section 4.03; provided, however,
that such purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value shall be excluded in the
calculation of the amount of Restricted Payments;
42
(iii) any purchase or redemption of Subordinated Obligations
from Net Available Cash to the extent permitted by Section 4.06;
provided, however, that such purchase or redemption shall be excluded
in the calculation of the amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with Section 4.04(a); provided, however, that such
dividend shall be included in the calculation of the amount of
Restricted Payments;
(v) the repurchase or other acquisition of shares of, or
options to purchase shares of, common stock of the Company or any of
its Subsidiaries from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements (including
employment agreements) or plans (or amendments thereto) or other
arrangements approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or
sell, shares of such common stock; provided, however, that the
aggregate amount of such repurchases shall not exceed $5 million in any
calendar year; provided further, however, that such repurchases and
other acquisitions shall be included in the calculation of the amount
of Restricted Payments; or
(vi) the payment of dividends on the Company's common stock
following the first bona fide underwritten primary public offering of
such common stock of up to 6% per annum of the net proceeds received by
the Company from such public offering; provided, however, that such
dividends shall be included in the calculation of the amount of
Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company or any of its Restricted Subsidiaries, (b) make any loans or advances to
the Company or any of its Restricted Subsidiaries or (c) transfer any of its
property or assets to the Company or any of its Restricted Subsidiaries, except:
(i) any encumbrance or restriction pursuant to (a) applicable
law or (b) an agreement in effect at or entered into on the Closing
Date;
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted
43
Subsidiary prior to the date on which such Restricted Subsidiary was
acquired by the Company (other than Indebtedness Incurred as
consideration in, in contemplation of, or to provide all or any portion
of the funds or credit support utilized to consummate, the transaction
or series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was otherwise acquired by
the Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (c) (i) or (c) (ii) of this Section
4.05 or this clause (iii) or contained in any amendment to an agreement
referred to in clause (c)(i) or (c)(ii) of this Section 4.05 or this
clause (iii); provided, however, that the encumbrances and restrictions
contained in any such refinancing agreement or amendment are no less
favorable to the Holders than the encumbrances and restrictions
contained in such predecessor agreements;
(iv) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease, license
or similar contract or (2) contained in security agreements securing
Indebtedness of a Restricted Subsidiary to the extent such encumbrance
or restriction restricts the transfer of the property subject to such
security agreements; and
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration (including by way of relief from, or by any
other Person assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition, (ii) at
least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or Temporary Cash Investments and
(iii) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by the Company (or such Restricted Subsidiary, as the
case may be) (1) first, to the extent the Company elects (or is required by the
terms of any Indebtedness), to prepay, repay, redeem or purchase Senior
Indebtedness of the Company or Indebtedness (other than any Disqualified Stock)
of a Wholly Owned Subsidiary (in each case other than Indebtedness owed to the
Company or an Affiliate of the Company and other than Preferred Stock) within
270 days after the later of the date of such Asset Disposition or
44
the receipt of such Net Available Cash; (2) second, to the extent of the balance
of Net Available Cash after application in accordance with clause (1), to the
extent the Company or such Restricted Subsidiary elects, to reinvest in
Additional Assets (including by means of an Investment in Additional Assets by a
Restricted Subsidiary with Net Available Cash received by the Company or another
Restricted Subsidiary) within 270 days from the later of such Asset Disposition
or the receipt of such Net Available Cash; (3) third, to the extent of the
balance of such Net Available Cash after application in accordance with clauses
(1) and (2), to make an Offer to purchase Securities pursuant to and subject to
the conditions of Section 4.06(b); provided, however, that if the Company elects
(or is required by the terms of any Senior Subordinated Indebtedness), such
Offer may be made ratably to purchase the Securities and other Senior
Subordinated Indebtedness of the Company, and (4) fourth, to the extent of the
balance of such Net Available Cash after application in accordance with clauses
(1), (2) and (3),for any general corporate purpose permitted by the terms of
this Indenture; provided, however, that in connection with any prepayment,
repayment or purchase of Indebtedness pursuant to clause (1), (2) or (4) above,
the Company or such Restricted Subsidiary shall retire such Indebtedness and
shall cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 4.06, the Company and
the Restricted Subsidiaries shall not be required to apply any Net Available
Cash in accordance with this Section 4.06(a) except to the extent that the
aggregate Net Available Cash from all Asset Dispositions that is not applied in
accordance with this Section 4.06(a) exceeds $10 million.
For the purposes of this Section 4.06, the following are
deemed to be cash: (A) the assumption of Indebtedness of the Company (other than
Disqualified Stock of the Company) or any Restricted Subsidiary and the release
of the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition and (B) securities
received by the Company or any Restricted Subsidiary from the transferee that
are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the
purchase of Securities (and other Senior Subordinated Indebtedness) pursuant to
Section 4.06(a)(iii)(3), the Company shall be required to purchase Securities
(and other Senior Subordinated Indebtedness) tendered pursuant to an offer by
the Company for the Securities (and other Senior Subordinated Indebtedness) (the
"Offer") at a purchase price of 100% of their principal amount plus accrued and
unpaid interest to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date) in accordance with the procedures (including prorating in
the event of oversubscription) set forth in Section 4.06(c). If the aggregate
purchase price of Securities (and other Senior Subordinated Indebtedness)
tendered pursuant to the Offer is less than the Net Available Cash allotted to
the purchase
45
of the Securities (and other Senior Subordinated Indebtedness), the Company
shall apply the remaining Net Available Cash in accordance with Section
4.06(a)(iii)(4). The Company shall not be required to make an Offer for
Securities (and other Senior Subordinated Indebtedness) pursuant to this Section
4.06 if the Net Available Cash available therefor (after application of the
proceeds as provided in clauses (1) and (2) of Section 4.06(a)(iii)) is less
than $10 million for any particular Asset Disposition (which lesser amount shall
be carried forward for purposes of determining whether an Offer is required with
respect to the Net Available Cash from any subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 Business Days
after the Company becomes obligated to make an Offer, the Company shall be
obligated to deliver to the Trustee and send, by first-class mail to each
Holder, a written notice stating that the Holder may elect to have his
Securities purchased by the Company either in whole or in part (subject to
prorating as hereinafter described in the event the Offer is oversubscribed) in
integral multiples of $1,000 of principal amount, at the applicable purchase
price. The notice shall specify a purchase date not less than 30 days nor more
than 60 days after the date of such notice (the "Purchase Date") and shall
contain such information concerning the business of the Company which the
Company in good faith believes will enable such Holders to make an informed
decision and all instructions and materials necessary to tender Securities
pursuant to the Offer, together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Company shall deliver
to the Trustee an Officers' Certificate as to (1) the amount of the Offer (the
"Offer Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for cancelation the
Securities or portions thereof that have been properly tendered to and are to be
accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the Offer Amount
delivered by the Company to the Trustee is greater than the purchase price of
the Securities (and any other Senior Subordinated Indebtedness) tendered, the
Trustee shall deliver the excess to the Company immediately after the expiration
of the Offer Period for application in accordance with this Section 4.06.
46
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered by the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities and any other
Senior Subordinated Indebtedness included in the Offer surrendered by holders
thereof exceeds the Offer Amount, the Company shall select the Securities and
any other Senior Subordinated Indebtedness to be purchased on a pro rata basis
or by lot (with such adjustments as may be deemed appropriate by the Company so
that only Securities and any other Senior Subordinated Indebtedness in
denominations of $1,000, or integral multiples thereof, shall be purchased).
Holders whose Securities are purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(iv) At the time the Company delivers Securities to the
Trustee which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(v) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or conduct any transaction or series of
related transactions (including, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless such Affiliate Transaction is on terms (i) that
are not materially less favorable to the Company or such Restricted Subsidiary,
as the case may be, than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an Affiliate
and (ii) that, in the event that such Affiliate Transaction involves an
aggregate amount in excess of $3 million, (1) are set forth in writing and (2)
have been approved by a majority of the members of the Board of Directors having
no personal stake in such Affiliate Transaction.
47
(b) The provisions of Section 4.07(a) shall not prohibit (i)
any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors, (iii) the
grant of stock options or similar rights to employees and directors of the
Company pursuant to plans approved by the Board of Directors, (iv) the payment
of reasonable fees to directors of the Company and its Subsidiaries who are not
employees of the Company or its Subsidiaries, (v) any transaction between the
Company and a Wholly Owned Subsidiary or between Wholly Owned Subsidiaries, (vi)
loans or advances to employees made in the ordinary course of business and
approved by the Board of Directors and (vii) any Affiliate Transaction as
described in the Disclosure Statement and existing on the Closing Date.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require that the Company purchase all or any
part of such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), in accordance
with the terms contemplated in Section 4.08(b); provided, however, that
notwithstanding the occurrence of a Change of Control, the Company shall not be
obligated to purchase the Securities pursuant to this Section 4.08 in the event
that it has exercised its right to redeem all the Securities under paragraph 5
of the Securities. In the event that at the time of such Change of Control the
terms of the Bank Indebtedness restrict or prohibit the repurchase of Securities
pursuant to this Section 4.08, then prior to the mailing of the notice to
Holders provided for in Section 4.08(b) below but in any event within 30 days
following any Change of Control, the Company shall (i) repay in full all Bank
Indebtedness or offer to repay in full all Bank Indebtedness and repay the Bank
Indebtedness of each lender who has accepted such offer or (ii) obtain the
requisite consent under the agreements governing the Bank Indebtedness to permit
the repurchase of the Securities as provided for in Section 4.08(b).
(b) Within 30 Business Days following any Change of Control
(except as provided in the proviso to the first sentence of Section 4.08(a)),
the Company shall mail a notice to each Holder with a copy to the Trustee (the
"Change of Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase all or a portion of
such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof, plus accrued and unpaid interest to the
date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on the relevant interest
payment date);
48
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased. Holders whose
Securities are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.
(d) On the purchase date, all Securities purchased by the
Company under this Section shall be delivered to the Trustee for cancelation,
and the Company shall pay the purchase price plus accrued and unpaid interest to
the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in Section 4.08(b) applicable to a Change of Control Offer made by the Company
and purchases all Securities validly tendered and not withdrawn under such
Change of Control Offer.
(f) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section 4.08. A
Security shall be deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(g) Prior to any Change of Control Offer, the Company shall
deliver to the Trustee an Officers' Certificate stating that all conditions
precedent contained herein to the right of the Company to make such offer have
been complied with.
(h) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or
49
regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4) of
the TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of
the Trustee, the Company shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. Future Subsidiary Guarantors. The Company shall
cause each existing and future domestic Restricted Subsidiary to become a
Subsidiary Guarantor, and, if not a party to this Indenture as originally
executed, to execute and deliver to the Trustee a supplemental indenture
substantially in the form of Exhibit C pursuant to which such Restricted
Subsidiary will Guarantee payment of the Securities. Each Subsidiary Guarantee
shall be limited to an amount not to exceed the maximum amount that can be
Guaranteed by that Restricted Subsidiary without rendering the Subsidiary
Guarantee, as it relates to such Restricted Subsidiary, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally. At the request and
expense of the Company, and to the extent such guarantee is released under the
Credit Agreements, a Subsidiary Guarantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such Subsidiary Guarantor
shall be sold, transferred or otherwise disposed of in a transaction permitted
by this Indenture.
SECTION 4.12. Limitation on Lines of Business. The Company
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business, other than a Permitted Business.
SECTION 4.13. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries. The Company shall not sell or otherwise
dispose of any shares of Capital Stock of a Restricted Subsidiary, and shall not
permit any Restricted Subsidiary, directly or indirectly, to issue or sell or
otherwise dispose of any shares of its Capital
50
Stock except: (a) to the Company or a Wholly Owned Subsidiary; (b) if,
immediately after giving effect to such issuance, sale or other disposition,
neither the Company nor any of its Subsidiaries own any Capital Stock of such
Restricted Subsidiary or (c) if, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person remaining after giving
effect thereto would have been permitted to be made under Section 4.04 if made
on the date of such issuance, sale or other disposition (and such Investment
shall be deemed to be an Investment for the purposes of such covenant). The
proceeds of any sale of such Capital Stock permitted hereby shall be treated as
Net Available Cash from an Asset Disposition and shall be applied in accordance
with Section 4.06.
SECTION 4.14. Limitations on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or
permit to exist any Lien of any nature whatsoever on any of its property or
assets (including Capital Stock of a Restricted Subsidiary), whether owned at
the Closing Date or thereafter acquired, other than Permitted Liens, without
effectively providing that the Securities shall be secured equally and ratably
with (or prior to) the obligations so secured for so long as such obligations
are so secured.
SECTION 4.15. Ratings. The Company shall use commercially
reasonable efforts, upon the request of the Administrative Agent, to have the
Securities rated B2 or better by Xxxxx'x Investors Service, Inc. and B or better
by Standard & Poor's Ratings Services within six months after the Closing Date;
provided, that so long as the Company complies with this Section 4.15, failure
to obtain such rating shall not be deemed an Event of Default.
SECTION 4.16. Payment of Fees and Expenses. The Company shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel (including local counsel) for the Administrative Agent,
in connection with the issuance of the Securities provided for herein, the
preparation and administration of this Indenture and the Security Documents and
all other documents related hereto, any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated) and (ii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent in connection with the enforcement
or protection of its rights in connection with the Security Documents, including
the creation and perfection of Liens securing the Securities, and this
Indenture, including its rights under this Section, or in connection with the
Securities issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Securities.
51
SECTION 4.17. Indemnification. The Company shall indemnify the
Administrative Agent, the Collateral Agent and any of its Affiliates (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee (which shall be limited to one joint counsel of each applicable type
or qualification to all Indemnitees, subject to the provisions of the next
paragraph), incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Indenture or any other agreement or instrument contemplated hereby, the
performance by the parties to the Indenture of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) the issuance of Securities or the use of the proceeds
therefrom, (iii) any actual or alleged presence or Release of Hazardous
Materials on or from any Mortgaged Property or any other property currently or
formerly owned or operated by the Company or any of the Subsidiary Guarantors,
or any Environmental Liability related in any way to the Company or any of the
Subsidiary Guarantors, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the bad faith, gross negligence or wilful
misconduct of such Indemnitee.
Each Indemnitee will provide the Company with prompt written
notification of any claim for which indemnification may be sought, provided that
the failure of any Indemnitee to give such notice shall not affect the Company's
indemnity obligations hereunder, except to the extent the Company has been
prejudiced by such Indemnitee's failure to notify. The Company shall, upon
confirming in writing to the applicable Indemnitee that the Company assumes full
liability for all claims and related costs and damages, be entitled to assume
the defense of any action for which indemnification is sought hereunder with
counsel of its choice at its expense (in which case the Company shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by an Indemnitee except as set forth below); provided, however, that
such counsel shall be reasonably satisfactory to each such Indemnitee.
Notwithstanding the Company's right to assume the defense of such action, each
Indemnitee shall have the right to employ separate counsel and to participate in
the defense of such action, and the Company shall bear the reasonable fees,
costs and expenses of such separate counsel, if (i) the relevant proceeding
involves claims or actions between the Company and such Indemnitee or the use of
counsel chosen by the Company to represent such Indemnitee would otherwise
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the Company and such
Indemnitee and such Indemnitee shall reasonably have concluded that there may be
legal defenses available to it that are different from or additional to those
presented by the Company (in which case the Company shall not have the right to
assume the defense of such action on behalf of such Indemnitee); (iii) the
Company shall not have employed counsel reasonably satisfactory to such
Indemnitee to
52
represent it within a reasonable time after notice of the institution of such
action; or (iv) the Company shall authorize such Indemnitee to employ separate
counsel at the Company's expense. The Company shall not be liable to any
Indemnitee for any settlement of an indemnified claim made without the Company's
consent (such consent not to be unreasonably withheld). No settlement or
adjustment will be made without such Indemnitee's prior written consent if the
settlement or adjustment involves any performance by, or adverse admission of,
such Indemnitee.
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. (a)
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by a supplemental indenture hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction;
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
53
(vi) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such transaction 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 transaction had not occurred.
The Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture, but the predecessor Company in the case of a conveyance, transfer or
lease of all or substantially all its assets shall not be released from the
obligation to pay the principal of and interest on the Securities.
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to any Person unless: (i) the resulting,
surviving or transferee Person will be a corporation organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and such Person (if not such Subsidiary Guarantor) shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee; (ii) immediately after
giving effect to such transaction (and treating any Indebtedness which becomes
an obligation of the resulting, surviving or transferee Person as a result of
such transaction as having been Incurred by such Person at the time of such
transaction), no Default shall have occurred and be continuing; and (iii) the
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this Indenture.
(c) Notwithstanding the foregoing, (i) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company or any Restricted Subsidiary and (ii) the
Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction to realize tax or other
benefits.
54
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(a) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, whether or not such
payment shall be prohibited by Article 10, and such default continues
for a period of 30 days;
(b) the Company (i) defaults in the payment of the principal
of any Security when the same becomes due and payable at its Stated
Maturity, upon required redemption or repurchase, upon declaration or
otherwise, whether or not such payment shall be prohibited by Article
10 or (ii) fails to redeem or purchase Securities when required
pursuant to this Indenture or the Securities, whether or not such
redemption or purchase shall be prohibited by Article 10;
(c) the Company fails to comply with Section 5.01;
(d) the Company fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, or 4.17 (other than a
failure to purchase Securities when required under Section 4.06 or
4.08) and such failure continues for 30 days after the notice specified
below;
(e) the Company or any Subsidiary Guarantor fails to comply
with any of its agreements in the Securities or this Indenture (other
than those referred to in (a), (b), (c) or (d) above) and such failure
continues for 60 days after the notice specified below;
(f) Indebtedness of the Company or any Subsidiary is not paid
within any applicable grace period after final maturity or the
acceleration by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $10 million
or its foreign currency equivalent at the time and such failure
continues for 10 days after the notice specified below;
(g) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
55
(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(i) any final judgment or final decree for the payment of
money in excess of $10 million or its foreign currency equivalent
against the Company or any Subsidiary and either (i) an enforcement
proceeding has been commenced by any creditor upon such judgment or
decree or (ii) there is a period of 60 days following the entry of such
judgment or decree during which such judgment or decree is not
discharged, waived or the execution thereof stayed; or
(j) any Subsidiary Guarantee ceases to be in full force and
effect (except as contemplated by the terms thereof) or any Subsidiary
Guarantor or Person acting by or on behalf of such Subsidiary Guarantor
denies or disaffirms its obligations under this Indenture or any
Subsidiary Guarantee and such Default continues for 10 days after the
notice specified below.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
56
A Default under clause (d), (e), (f) or (j) above is not an
Event of Default until the Trustee notifies the Company or the Holders of at
least 25% in principal amount of the outstanding Securities notify the Company
and the Trustee of the Default and the Company or the Subsidiary Guarantor, as
applicable, does not cure such Default within the time specified after receipt
of such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(g) or (h) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company and the
Trustee, or the Holders of at least 25% in principal amount of the outstanding
Securities by notice to the Company, may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(g) or (h) with respect to the
Company occurs, the principal of and interest on all the Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holders. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
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SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (a) a Default in the
payment of the principal of or interest on a Security, (b) a Default arising
from the failure to redeem or purchase any Security when required pursuant to
the terms of this Indenture or (c) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. (a) Except to enforce the
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
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SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed or provided for in the
Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
then due and owing (together with interest on overdue principal and (to the
extent lawful) on any unpaid interest at the rate provided for in the
Securities) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders allowed
in any judicial proceedings relative to the Company, any Subsidiary or
Subsidiary Guarantor, their creditors or their property and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company to
the extent required by Article 10 and to holders of Senior Indebtedness
of the Subsidiary Guarantors to the extent required by Article 12;
THIRD: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities
for principal and interest, respectively; and
FOURTH: to the Company.
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The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the
Company nor any Subsidiary Guarantor (to the extent it may lawfully do so) shall
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Subsidiary Guarantor (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) 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.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) 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 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the
same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Subsidiary Guarantee or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company or any Subsidiary
Guarantor in this Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the Trustee's certificate
of authentication. The Trustee shall not be charged with knowledge of any
Default or Event of Default under Sections 6.01(c), (d), (e), (f), (i) or (j) or
of the identity of any Significant Subsidiary unless either (a) a Trust Officer
shall have actual knowledge thereof or (b) the Trustee shall have received
notice thereof in
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accordance with Section 16.02 hereof from the Company, any Subsidiary Guarantor
or any Holder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within the earlier of 90 days after it occurs or 30
days after it is known to a trust officer. Except in the case of a Default in
payment of principal of or interest on any Security (including payments pursuant
to the mandatory redemption provisions of such Security, if any), the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of
Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each [May 15] beginning with the [May 15] following the date
of this Indenture, and in any event prior to [July 15] in each year, the Trustee
shall mail to each Holder a brief report dated as of such [May 15] that complies
with Section 313(a) of the TIA if and to the extent required thereby. The
Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Subsidiary Guarantor, jointly and severally shall
indemnify the Trustee against any and all loss, liability or expense (including
reasonable attorneys' fees) incurred by or in connection with the administration
of this trust and the performance of its duties hereunder. The Trustee shall
notify the Company of any claim for which it may seek indemnity promptly upon
obtaining actual knowledge thereof; provided, however, that any failure so to
notify the Company shall not relieve the Company or any Subsidiary Guarantor of
its indemnity obligations hereunder. The Company shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Company's expense
in the defense. Such indemnified parties may have separate counsel and the
Company and the Subsidiary Guarantors, as applicable shall pay the fees and
expenses of such counsel; provided, however, that the Company shall not be
required to pay such fees and expenses if it assumes such indemnified parties'
defense
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and, in such indemnified parties' reasonable judgment, there is no conflict of
interest between the Company and the Subsidiary Guarantors, as applicable, and
such parties in connection with such defense. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party's own wilful misconduct, negligence or bad
faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(g) or (h) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. (a) The Trustee may
resign at any time by so notifying the Company. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by
the Holders of a majority in principal amount of the Securities and such Holders
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
(c) 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
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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, subject to the lien provided for in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless
the Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Holder who has been a bona fide holder of a Security for at least six months
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee
shall have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the TIA, subject to its right to apply for a stay
of its duty to resign under the penultimate paragraph of Section 310(b) of the
TIA; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the
65
Company are outstanding if the requirements for such exclusion set forth in
Section 310(b)(1) of the TIA are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) all outstanding Securities (other than Securities
replaced or paid pursuant to Section 2.07) have been canceled or delivered to
the Trustee for cancelation or (ii) all outstanding Securities have become due
and payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article 3 hereof, and the Company irrevocably deposits
with the Trustee funds in an amount sufficient or U.S. Government Obligations,
the principal of and interest on which will be sufficient, or a combination
thereof sufficient, in the written opinion of a nationally recognized firm of
independent public accountants delivered to the Trustee (which delivery shall
only be required if U.S. Government Obligations have been so deposited), to pay
the principal of and interest on the outstanding Securities when due at maturity
or upon redemption of, including interest thereon to maturity or such redemption
date (other than Securities replaced or paid pursuant to Section 2.07) and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 8.01(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all of its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16
and the operation of Section 5.01(a)(iii), 5.01(a)(iv), 6.01(d), 6.01(f),
6.01(g) (with respect to Significant Subsidiaries of the Company only), 6.01(h)
(with respect to Significant Subsidiaries of the Company only) and 6.01(i)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option. In
the event that the Company terminates all of its obligations under the
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Securities and this Indenture by exercising its legal defeasance option or its
covenant defeasance option, the Collateral shall be released simultaneously with
the termination of such obligations.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(d),
6.01(f), 6.01(g) (with respect to Significant Subsidiaries only), 6.01(h) (with
respect to Significant Subsidiaries only) or 6.01(i) or because of the failure
of the Company to comply with clauses (iii) and (iv) of Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 4.17, 7.07, 7.08 and
in this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.05 and 8.06 shall
survive.
SECTION 8.02. Conditions to Defeasance. (a) The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee
money in an amount sufficient or U.S. Government Obligations, the
principal of and interest on which will be sufficient, or a combination
thereof sufficient, to pay the principal of, and premium and interest
(if any) on, the Securities when due at maturity or redemption, as the
case may be, including interest thereon to maturity or such redemption
date;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal, premium and
interest (if any) when due on all the Securities to maturity or
redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(g) or (h) with
respect to the Company occurs which is continuing at the end of the
period;
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(iv) the deposit does not constitute a default under any other
material agreement binding on the Company and is not prohibited by
Article 10;
(v) the Company delivers to the Trustee an Opinion of Counsel,
or other evidence satisfactory to the Trustee, to the effect that the
trust resulting from the deposit does not constitute, or is qualified
as, a regulated investment company under the Investment Company Act of
1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(1) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (2) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit and 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 deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and 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
deposit and defeasance had not occurred; and
(viii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
(b) Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities. Money
and securities so held in trust are not subject to Article 10 or 12.
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SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public accountants
delivered to the Trustee (which delivery shall only be required if U.S.
Government Obligations have been so deposited), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors, and the Trustee and the Paying Agent
shall have no further liability with respect to such monies.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of principal of or interest on, any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. (a) The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
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(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to make any change in Article 10 or Article 12 that would
limit or terminate the benefits available to any holder of Senior
Indebtedness of the Company or a Subsidiary Guarantor (or
Representatives thereof) under Article 10 or Article 12, respectively;
(v) to add additional Guarantees with respect to the
Securities or to add additional security for the Securities;
(vi) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(vii) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(viii) to make any change that does not adversely affect the
rights of any Holder.
(b) An amendment under this Section 9.01 may not make any
change that adversely affects the rights under Article 10 or Article 12 of any
holder of Senior Indebtedness of the Company or a Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Holder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including consents obtained in
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connection with a tender offer or exchange for the Securities). However, without
the consent of each Holder affected, an amendment may not:
(i) reduce the amount of Securities whose Holders must consent
to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
(v) make any Security payable in money other than that stated
in the Security;
(vi) make any change in Article 10 or Article 12 that
adversely affects the rights of any Holder under Article 10 or Article
12;
(vii) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02; or
(viii) modify the Subsidiary Guarantees in any manner adverse
to the Holders.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change
that adversely affects the rights under Article 10 or Article 12 of any holder
of Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.02 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
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SECTION 9.04. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Security shall bind
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date on which the Trustee receives an Officers'
Certificate from the Company certifying that the requisite number of consents
have been received. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the (i) receipt
by the Company or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Company
and the Trustee.
(b) 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 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
that such amendment is the legal, valid and binding obligation of the Company
and the Subsidiary Guarantors enforceable against them in accordance with its
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terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Subordination
SECTION 10.01. Agreement To Subordinate. The Company agrees,
and each Holder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full of all Senior
Indebtedness of the Company and that the subordination is for the benefit of and
enforceable by the holders of such Senior Indebtedness. The Securities shall in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
the Company and only Indebtedness of the Company that is Senior Indebtedness of
the Company shall rank senior to the Securities in accordance with the
provisions set forth herein. All provisions of this Article 10 shall be subject
to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(a) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full of such Senior Indebtedness before
Holders shall be entitled to receive any payment of principal of or
interest on the Securities; and
(b) until the Senior Indebtedness of the Company is paid in
full, any payment or distribution to which Holders would be entitled
but for this Article 10 shall be made to holders of such Senior
Indebtedness as their interests may appear.
SECTION 10.03. Default on Bank Indebtedness. The Company may
not pay the principal of, premium (if any) or interest on the Securities or make
any deposit
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pursuant to Section 8.01 and may not otherwise repurchase, redeem or
otherwise retire any Securities (collectively, "pay the Securities") if (a) any
Bank Indebtedness of the Company is not paid when due or (b) any other default
on such Bank Indebtedness occurs and the maturity of such Bank Indebtedness is
accelerated in accordance with its terms unless, in either case, (i) the default
has been cured or waived and any such acceleration has been rescinded or (ii)
such Bank Indebtedness has been paid in full; provided, however, that the
Company may pay the Securities without regard to the foregoing if the Company
and the Trustee receive written notice approving such payment from the
Representative of such Bank Indebtedness with respect to which either of the
events set forth in clause (a) or (b) of this sentence has occurred and is
continuing. During the continuance of any default (other than a default
described in clause (a) or (b) of the preceding sentence) with respect to any
Bank Indebtedness of the Company pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Company may not pay the Securities for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee (with a copy to the
Company) of written notice (a "Blockage Notice") of such default from the
Representative of such Bank Indebtedness specifying an election to effect a
Payment Blockage Period and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated (a) by written notice to the Trustee and
the Company from the Person or Persons who gave such Blockage Notice, (b) by
repayment in full of such Bank Indebtedness or (c) because the default giving
rise to such Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section), unless the holders
of such Bank Indebtedness or the Representative of such holders shall have
accelerated the maturity of such Bank Indebtedness, the Company may resume
payments on the Securities after the end of such Payment Blockage Period,
including any missed payments. Not more than two Blockage Notices may be given
in any consecutive 365-day period, irrespective of the number of defaults with
respect to Bank Indebtedness during such period; provided, however, that in no
event may the total number of days during which any Payment Blockage Period or
Periods is in effect exceed 179 days in the aggregate during any consecutive
365-day period. For purposes of this Section, no default or event of default
that existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Bank Indebtedness initiating such Payment
Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period by the Representative of such Bank
Indebtedness, whether or not within a period of 365 consecutive days, unless
such default or event of default shall have been cured or waived for a period of
not less than 90 consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Company or the Trustee (provided, that the Trustee shall have received written
notice from the Company, on
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which notice the Trustee shall be entitled to conclusively rely) shall promptly
notify the holders of the Bank Indebtedness of the Company (or their
Representative) of the acceleration. If any Bank Indebtedness of the Company is
outstanding, the Company may not pay the Securities until five Business Days
after such holders or the Representative of such Bank Indebtedness receive
notice of such acceleration and, thereafter, may pay the Securities only if this
Article 10 otherwise permits payment at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article 10 should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the Company and pay it over to them
as their interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of
the Company is paid in full and until the Securities are paid in full, Holders
shall be subrogated to the rights of holders of such Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article 10 to holders of such Senior Indebtedness which otherwise
would have been made to Holders is not, as between the Company and Holders, a
payment by the Company on such Senior Indebtedness.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Holders and holders of Senior Indebtedness of the Company.
Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of and interest on the Securities in accordance with their terms; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Holders.
SECTION 10.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it that payments
may not be made under this Article 10. The Company, the
74
Registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness
of the Company may give the notice; provided, however, that, if an issue of
Senior Indebtedness of the Company has a Representative, only the Representative
may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of the Company with the same rights it would have if it were
not Trustee. The Registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to any Senior Indebtedness of the Company which may at
any time be held by it, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07 or any other Section
of this Indenture.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the Company, the distribution may be made and the notice given
to their Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Except as provided in Section 10.04,
nothing in this Article 10 shall have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Securities.
SECTION 10.12. Trust Monies Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 by the Trustee for
the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness of the Company or
subject to the restrictions set forth in this Article 10, and none of the
Holders shall be obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness of the Company or any other creditor of the
Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Holders or
(c) upon the Representatives for the holders of Senior Indebtedness of the
Company for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior Indebtedness and
76
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness of the Company to participate in any payment or
distribution pursuant to this Article 10, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 10, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Holder by accepting a Security authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of the Company as provided in this Article 10 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. 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 of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Holders or the
Company or any other Person, money or assets to which any holders of Senior
Indebtedness of the Company shall be entitled by virtue of this Article 10 or
otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Security 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 of
the Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such 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.
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ARTICLE XI
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees. (a) Each Subsidiary
Guarantor hereby jointly and severally irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (i) the full and punctual payment
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Company under this Indenture (including
obligations to the Trustee) and the Securities, whether for payment of principal
of or interest on the Securities and all other monetary obligations of the
Company under this Indenture and the Securities and (ii) the full and punctual
performance within applicable grace periods of all other obligations of the
Company whether for fees, expenses, indemnification or otherwise under this
Indenture and the Securities (all the foregoing being hereinafter collectively
called the "Guaranteed Obligations"). Each Subsidiary Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice or further assent from each such Subsidiary Guarantor, and that
each such Subsidiary Guarantor shall remain bound under this Article 11
notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand
of payment from and protest to the Company of any of the Guaranteed Obligations
and also waives notice of protest for nonpayment. Each Subsidiary Guarantor
waives notice of any default under the Securities or the Guaranteed Obligations.
The obligations of each Subsidiary Guarantor hereunder shall not be affected by
(i) the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (ii) any
extension or renewal of any thereof; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Securities
or any other agreement; (iv) the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations or any of them; (v) the failure of
any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of
such Subsidiary Guarantor, except as provided in Section 11.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which
it may be entitled to have its obligations hereunder divided among the
Subsidiary Guarantors, such that such Subsidiary Guarantor's obligations would
be less than the full amount claimed. Each Subsidiary Guarantor hereby waives
any right to which it may be entitled to have the assets of the Company first be
used and depleted as payment of the Company's or such Subsidiary Guarantor's
obligations hereunder prior to any amounts being claimed from or paid by such
Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any
right to which it may be entitled to require that the Company be sued prior to
an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein constitutes a guarantee of payment, performance and
compliance when due (and
78
not a guarantee of collection) and waives any right to require that any resort
be had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
(e) The Subsidiary Guarantee of each Subsidiary Guarantor is,
to the extent and in the manner set forth in Article 12, subordinated and
subject in right of payment to the prior payment in full of the principal of and
premium, if any, and interest on all Senior Indebtedness of the relevant
Subsidiary Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 8.01(b), 11.02
and 11.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Subsidiary Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor or would
otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law
or equity.
(g) Each Subsidiary Guarantor agrees that its Subsidiary
Guarantee shall remain in full force and effect until payment in full of all the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of or
interest on any Guaranteed Obligation is rescinded or must otherwise be restored
by any Holder or the Trustee upon the bankruptcy or reorganization of the
Company or otherwise.
(h) In furtherance of the foregoing and not in limitation of
any other right which any Holder or the Trustee has at law or in equity against
any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to
pay the principal of or interest on any Guaranteed Obligation when and as the
same shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guaranteed Obligation, each
Subsidiary Guarantor hereby promises to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid principal
amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such
Guaranteed Obligations (but only to the extent not prohibited by law) and (iii)
all other monetary obligations of the Company to the Holders and the Trustee.
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(i) Each Subsidiary Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any Guaranteed Obligations guaranteed hereby until payment in full of all
Guaranteed Obligations and all obligations to which the Guaranteed Obligations
are subordinated as provided in Article 12. Each Subsidiary Guarantor further
agrees that, as between it, on the one hand, and the Holders and the Trustee, on
the other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby
may be accelerated as provided in Article 6 for the purposes of any Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations guaranteed
hereby, and (ii) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section 11.01.
(j) Each Subsidiary Guarantor also agrees to pay any and all
costs and expenses (including reasonable attorneys' fees and expenses) incurred
by the Trustee or any Holder in enforcing any rights under this Section 11.01.
(k) Upon request of the Trustee, each Subsidiary Guarantor
shall execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the purpose
of this Indenture.
SECTION 11.02. Limitation on Liability. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Subsidiary Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates to such Subsidiary
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
(b) A Subsidiary Guarantee as to any Subsidiary Guarantor
shall terminate and be of no further force or effect and such Subsidiary
Guarantor shall be deemed to be released from all obligations under this Article
11 upon (i) the merger or consolidation of such Subsidiary Guarantor with or
into any Person other than the Company or a Subsidiary or Affiliate of the
Company where such Subsidiary Guarantor is not the surviving entity of such
consolidation or merger or (ii) the sale by the Company or any Subsidiary of the
Company (or any pledgee of the Company) of the Capital Stock of such Subsidiary
Guarantor, where, after such sale, such Subsidiary Guarantor is no longer a
Subsidiary of the Company; provided, however, that each such merger,
consolidation or sale (or, in the case of a sale by such a pledgee, the
disposition of the proceeds of such sale) shall comply with Section 4.06 and
Section 5.01(b). At the request of the Company,
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the Trustee shall execute and deliver an appropriate instrument evidencing such
release (in the form provided by the Company).
SECTION 11.03. Successors and Assigns. This Article 11 shall
be binding upon each Subsidiary Guarantor and its successors and assigns and
shall inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 11 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 11
at law, in equity, by statute or otherwise.
SECTION 11.05. Modification. No modification, amendment or
waiver of any provision of this Article 11, nor the consent to any departure by
any Subsidiary Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
SECTION 11.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
Guarantor pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article 11
and shall guarantee the Guaranteed Obligations. Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms and
or to such other matters as the Trustee may reasonably request.
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SECTION 11.07. Non-Impairment. The failure to endorse a
Subsidiary Guarantee on any Security shall not affect or impair the validity
thereof.
ARTICLE XII
Subordination of the Subsidiary Guarantees
SECTION 12.01. Agreement To Subordinate. Each Subsidiary
Guarantor agrees, and each Holder by accepting a Security agrees, that the
obligations of a Subsidiary Guarantor hereunder are subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full of all Senior Indebtedness of such Subsidiary Guarantor
and that the subordination is for the benefit of and enforceable by the holders
of such Senior Indebtedness of such Subsidiary Guarantor. The obligations
hereunder with respect to a Subsidiary Guarantor shall in all respects rank pari
passu with all other Senior Subordinated Indebtedness of such Subsidiary
Guarantor and shall rank senior to all existing and future Subordinated
Obligations of such Subsidiary Guarantor; and only Indebtedness of such
Subsidiary Guarantor that is Senior Indebtedness of such Subsidiary Guarantor
shall rank senior to the obligations of such Subsidiary Guarantor in accordance
with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of a Subsidiary Guarantor to creditors
upon a total or partial liquidation or a total or partial dissolution of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor and its
properties:
(a) holders of Senior Indebtedness of such Subsidiary
Guarantor shall be entitled to receive payment in full of such Senior
Indebtedness before Holders shall be entitled to receive any payment
pursuant to any Guaranteed Obligations from such Subsidiary Guarantor;
and
(b) until the Senior Indebtedness of such Subsidiary Guarantor
is paid in full, any payment or distribution to which Holders would be
entitled but for this Article 12 shall be made to holders of such
Senior Indebtedness as their respective interests may appear, except
that Holders may receive shares of stock and any debt securities that
are subordinated to such Senior Indebtedness to at least the same
extent as the Subsidiary Guarantees.
SECTION 12.03. Default on Bank Indebtedness of a Subsidiary
Guarantor. A Subsidiary Guarantor may not make any payment pursuant to any of
the Guaranteed Obligations or repurchase, redeem or otherwise retire any
Securities (collectively, "pay its Guarantee") if (a) any Bank Indebtedness of
such Subsidiary
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Guarantor is not paid when due or (b) any other default on Bank Indebtedness of
such Subsidiary Guarantor occurs and the maturity of such Bank Indebtedness is
accelerated in accordance with its terms unless, in either case, (i) the default
has been cured or waived and any such acceleration has been rescinded or (ii)
such Bank Indebtedness has been paid in full; provided, however, that such
Subsidiary Guarantor may pay its Guarantee without regard to the foregoing if
such Subsidiary Guarantor and the Trustee receive written notice approving such
payment from the Representative of the holders of such Bank Indebtedness with
respect to which either of the events in clause (a) or (b) of this sentence has
occurred and is continuing. During the continuance of any default (other than a
default described in clause (a) or (b) of the preceding sentence) with respect
to any Bank Indebtedness of a Subsidiary Guarantor pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, such Subsidiary Guarantor may not pay its
Guarantee for a period (a "Guarantee Payment Blockage Period") commencing upon
the receipt by the Trustee (with a copy to such Subsidiary Guarantor and the
Company) of written notice (a "Guarantee Blockage Notice") of such default from
the Representative of the holders of the Bank Indebtedness of such Subsidiary
Guarantor specifying an election to effect a Guarantee Payment Blockage Period
and ending 179 days thereafter (or earlier if such Guarantee Payment Blockage
Period is terminated (a) by written notice to the Trustee (with a copy to such
Subsidiary Guarantor and the Company) from the Person or Persons who gave such
Guarantee Blockage Notice, (b) because such Bank Indebtedness has been repaid in
full or (c) because the default giving rise to such Guarantee Blockage Notice is
no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section 12.03), unless the holders of such Bank
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Bank Indebtedness, such Subsidiary Guarantor may resume to
paying its Subsidiary Guarantee after such Guarantee Payment Blockage Period,
including any missed payments. Not more than two Guarantee Blockage Notices may
be given with respect to a Subsidiary Guarantor in any consecutive 365-day
period, irrespective of the number of defaults with respect to Bank Indebtedness
of such Subsidiary Guarantor during such period; provided, however, that in no
event may the total number of days during which any Guarantee Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 365
consecutive day period. For purposes of this Section 12.03, no default or event
of default that existed or was continuing on the date of the commencement of any
Guarantee Payment Blockage Period with respect to the Bank Indebtedness
initiating such Guarantee Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Guarantee Payment Blockage Period by
the Representative of such Bank Indebtedness, whether or not within a period of
365 consecutive days, unless such default or event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
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SECTION 12.04. Demand for Payment. If payment of the
Securities is accelerated because of an Event of Default and a demand for
payment is made on a Subsidiary Guarantor pursuant to Article 11, the Trustee
(provided that the Trustee shall have received written notice from the Company
or such Subsidiary Guarantor, on which notice the Trustee shall be entitled to
conclusively rely) shall promptly notify the holders of the Bank Indebtedness of
such Subsidiary Guarantor (or the Representative of such holders) of such
demand. If any Bank Indebtedness of such Subsidiary Guarantor is outstanding,
such Subsidiary Guarantor may not pay its Guarantee until five Business Days
after such holders or the Representative of the holders of the Bank Indebtedness
of such Subsidiary Guarantor receive notice of such demand and, thereafter, may
pay its Guarantee only if this Article 12 otherwise permits payment at that
time.
SECTION 12.05. When Distribution Must Be Paid Over. If a
payment or distribution is made to Holders that because of this Article 12
should not have been made to them, the Holders who receive the payment or
distribution shall hold such payment or distribution in trust for holders of the
Senior Indebtedness of the relevant Subsidiary Guarantor and pay it over to them
as their respective interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness of a
Subsidiary Guarantor is paid in full and until the Securities are paid in full
in cash, Holders shall be subrogated to the rights of holders of Senior
Indebtedness of such Subsidiary Guarantor to receive distributions applicable to
Bank Indebtedness of such Subsidiary Guarantor. A distribution made under this
Article 12 to holders of Senior Indebtedness of such Subsidiary Guarantor which
otherwise would have been made to Holders is not, as between such Subsidiary
Guarantor and Holders, a payment by such Subsidiary Guarantor on Senior
Indebtedness of such Subsidiary Guarantor.
SECTION 12.07. Relative Rights. This Article 12 defines the
relative rights of Holders and holders of Senior Indebtedness of a Subsidiary
Guarantor. Nothing in this Indenture shall:
(a) impair, as between a Subsidiary Guarantor and Holders, the
obligation of a Subsidiary Guarantor which is absolute and
unconditional, to make payments with respect to the Guaranteed
Obligations to the extent set forth in Article 11; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a default by a Subsidiary Guarantor under its
obligations with respect to the Guaranteed Obligations, subject to the
rights of holders of Senior Indebtedness of such Subsidiary Guarantor
to receive distributions otherwise payable to Holders.
SECTION 12.08. Subordination May Not Be Impaired by a
Subsidiary Guarantor. No right of any holder of Senior Indebtedness of a
Subsidiary Guarantor to
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enforce the subordination of the obligations of such Subsidiary Guarantor
hereunder shall be impaired by any act or failure to act by such Subsidiary
Guarantor or by its failure to comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or the Paying Agent may continue to
make payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it that payments
may not be made under this Article 12. A Subsidiary Guarantor, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of a Subsidiary Guarantor may give the notice; provided, however,
that if an issue of Senior Indebtedness of a Subsidiary Guarantor has a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of a Subsidiary Guarantor with the same rights it would have
if it were not Trustee. The Registrar and co-registrar and the Paying Agent may
do the same with like rights. The Trustee shall be entitled to all the rights
set forth in this Article 12 with respect to any Senior Indebtedness of a
Subsidiary Guarantor which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness of such Subsidiary Guarantor; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 12 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07 or any other Section of this
Indenture.
SECTION 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of a Subsidiary Guarantor, the distribution may be made and the
notice given to their Representative (if any).
SECTION 12.11. Article 12 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure of a Subsidiary Guarantor to make a
payment on any of its obligations by reason of any provision in this Article 12
shall not be construed as preventing the occurrence of a default by such
Subsidiary Guarantor under such obligations. Except as provided in Section
12.04, nothing in this Article 12 shall have any effect on the right of the
Holders or the Trustee to make a demand for payment on a Subsidiary Guarantor
pursuant to Article 11.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to
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the Trustee or to the Holders or (c) upon the Representatives for the holders of
Senior Indebtedness of a Subsidiary Guarantor for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the holders
of the Senior Indebtedness of a Subsidiary Guarantor and other Indebtedness of a
Subsidiary Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 12. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of a Subsidiary Guarantor to participate in any payment or
distribution pursuant to this Article 12, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness of such Subsidiary Guarantor held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 12, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 12.
SECTION 12.13. Trustee To Effectuate Subordination. Each
Holder by accepting a Security authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of each of the Subsidiary Guarantors as provided in this Article 12
and appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Subsidiary Guarantor. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness of a Subsidiary
Guarantor and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to Holders or the relevant Subsidiary Guarantor or any other
Person, money or assets to which any holders of Senior Indebtedness of such
Subsidiary Guarantor shall be entitled by virtue of this Article 12 or
otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Subsidiary Guarantor on Subordination Provisions. Each Holder by accepting a
Security 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 of a Subsidiary Guarantor, whether such Senior
Indebtedness was created or acquired before or after the issuance of the
Securities, 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.
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SECTION 12.16. Defeasance. Notwithstanding anything contained
herein to the contrary, payments from money or the proceeds of U.S. Government
Obligations held in trust under Article 8 by the Trustee for the payment of
principal of, and interest on, the Securities shall not be subordinated to the
prior payment of any Senior Indebtedness of any Subsidiary Guarantor or subject
to the restrictions set forth in this Article 12, and none of the Holders shall
be obligated to pay over any such amount to a Subsidiary Guarantor or any holder
of Senior Indebtedness of Subsidiary Guarantor or any other creditor of a
Subsidiary Guarantor.
ARTICLE XIII
Representations and Warranties
SECTION 13.01. Representations and Warranties of the Company
and the Subsidiary Guarantors. The Company and the Subsidiary Guarantors jointly
and severally represent and warrant that:
(a) Organization; Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, is qualified to do business in, and
is in good standing in, every jurisdiction where such qualification is required.
(b) Authorization; Enforceability. The Transactions entered
into and to be entered into by each of the Company and the Subsidiary Guarantors
are within such party's corporate powers and have been duly authorized by all
necessary action. Each of this Indenture (including each Subsidiary Guarantee
set forth herein), the Securities, the Disclosure Statement, the Security
Documents and the Credit Agreements (the "Transaction Documents") has been duly
authorized by the Company and each of the Subsidiary Guarantors (as the case may
be) and, when duly executed and delivered by the Company and the Subsidiary
Guarantors (as the case may be), will constitute a legal, valid and binding
obligation of each of the Company and the Subsidiary Guarantors (as the case may
be), enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law. On the Closing Date, this
Indenture will conform in all material respects to the requirements of the TIA,
and the rules and regulations of the SEC applicable to an indenture that is
qualified thereunder.
(c) Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by or
87
before, any Governmental Authority, except such as have been obtained or made
and are in full force and effect and except filings necessary to perfect Liens
created under the Security Documents, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under, or result in the termination,
cancelation or acceleration of any obligation or a loss of a material benefit
under, any indenture, agreement or other instrument binding upon the Company or
any of its Subsidiaries or any of their assets, or give rise to a right
thereunder to require any payment to be made by the Company or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries, except Liens created
under the Security Documents and other Permitted Liens. The Orders (i) are in
full force and effect and (ii) are not subject to any stay, reversal,
modification or vacatur, in whole or in part.
(d) Financial Condition; No Material Adverse Change. (i) The
Company has heretofore furnished to the Administrative Agent its consolidated
balance sheet and statements of income, stockholders' equity and cash flows (x)
as of and for the fiscal years ended December 31, 1999, December 31, 2000, and
December 31, 2001, reported on by [ ], independent public accountants, (y) as of
and for the fiscal quarters ended March 31, 2002, June 30, 2002, and September
30, 2002, and (z) as of and for each fiscal month after the most recent fiscal
period described in clause (y) above and ending at least 30 days prior to the
Closing Date, in each case certified by its chief financial officer. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Company and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clauses (y) and (z) above.
(ii) The Company has heretofore furnished to the
Administrative Agent its pro forma consolidated balance sheet as of the
Closing Date, prepared giving effect to the Transactions. Such pro
forma consolidated balance sheet (w) has been prepared in good faith
based on reasonable assumptions, (x) is based on the best information
available to the Company after due inquiry, (y) accurately reflects all
adjustments necessary to give effect to the Transactions and (z)
presents fairly, in all material respects, the pro forma financial
position of the Company and its consolidated Subsidiaries as of the
Closing Date.
(iii) Except as disclosed in the financial statements referred
to above or the notes thereto or in the Disclosure Statement, after
giving effect to the Transactions, none of the Company or its
Subsidiaries has, as of the Closing Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.
88
(iv) Since December 31, 2001, there has not been any change in
the capital stock or long-term debt of the Company or any of its
Subsidiaries, other than any change disclosed in the Disclosure
Statement, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the Company on any class of capital
stock, and there has been no material adverse change in the business,
operations, properties, assets, condition (financial or otherwise),
liabilities (including contingent liabilities) or prospects of the
Company and its Subsidiaries, taken as a whole, other than any material
adverse change disclosed in the Plan or the Disclosure Statement.
(e) Properties. (i) Each of the Company and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business (including its Mortgaged Properties), except
for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended
purposes.
(ii) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, trade names, copyrights, patents and
other intellectual property material to its business, and the use
thereof by the Company and its Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(iii) Schedule 13.01(e) sets forth the address of each real
property that is owned or leased by the Company or any of its
Subsidiaries as of the Closing Date after giving effect to the
Transactions.
(iv) As of the Closing Date, none of the Company or its
Subsidiaries has received notice of, or has knowledge of, any pending
or contemplated condemnation proceeding affecting any Mortgaged
Property or any sale or disposition thereof in lieu of condemnation.
Neither any Mortgaged Property nor any interest therein is subject to
any right of first refusal, option or other contractual right to
purchase any such Mortgaged Property or interest therein.
(f) Litigation and Environmental Matters. There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than as described in
the Disclosure Statement) or (ii) that involve this Indenture, any of the
Security Documents or the Transactions.
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Except as disclosed in Schedule 13.01(f) and except with
respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any of its Subsidiaries (i) has failed
to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received any request for information pursuant to
any Environmental Law or notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
Since the date of the Disclosure Statement, there has been no
change in the status of matters disclosed in the Disclosure Statement
that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
(g) Compliance with Laws and Agreements. The Company and each
of its Subsidiaries is in compliance with all laws, regulations and orders of
any arbitrator or Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
(h) Independent Accountants. [ ], who have certified certain
financial statements of the Company and its Subsidiaries are independent public
accountants with respect to the Company and its Subsidiaries within the meaning
of Rule 101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants and its interpretations and rulings thereunder.
(i) Investment and Holding Company Status. None of the Company
or its Subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
(j) Taxes. Each of the Company and its Subsidiaries has timely
filed or caused to be filed all tax returns and reports required to have been
filed and has paid or caused to be paid all taxes required to have been paid by
it, except (a) any taxes that are being contested in good faith by appropriate
proceedings and for which the Company or such Subsidiary, as applicable, has set
aside on its books adequate reserves, (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect or
(c) as otherwise provided for in the Disclosure Statement or pursuant to the
Plan.
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(k) ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Pension Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $2.5 million the fair market value of the assets of such Pension
Plan, and the present value of all accumulated benefit obligations of all
underfunded Pension Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $5 million the fair market value of the assets of all such underfunded
Pension Plans.
(l) Disclosure. The Company has disclosed to the
Administrative Agent (including through the provision of bankruptcy filings) all
agreements, instruments and corporate or other restrictions to which the Company
or any of its Subsidiaries is subject, and all matters known to any of them,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. Neither the Disclosure Statement nor any of the
reports, financial statements, certificates or other information furnished in
writing taken as a whole by or on behalf of any of the Company or its
Subsidiaries to the Administrative Agent in connection with the negotiation of
this Indenture or any Security Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, provided that, with respect to projected financial
information the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
(m) Subsidiaries. Schedule 2 sets forth the name of, and the
ownership interest of the Company in, each Subsidiary and Schedule 1 identifies
each Subsidiary that is a Subsidiary Guarantor, in each case as of the Closing
Date.
(n) Insurance. As of the Closing Date, all premiums in respect
of such insurance, which will be maintained from and after the Closing Date,
have been paid or will be paid substantially simultaneously with the Closing
Date. The Company believes that the insurance maintained by or on behalf of the
Company and its Subsidiaries is adequate.
(o) Labor Matters. As of the Closing Date, there are no
strikes, lockouts or slowdowns against the Company or any Subsidiary pending or,
to the knowledge of the Company, threatened. The hours worked by and payments
made to employees of the Company and its Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters. All
91
payments due from the Company or any Subsidiary, or for which any claim may be
made against the Company or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Company or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Company or any Subsidiary is bound.
(p) Solvency. On the Closing Date, (i) the fair value of the
assets of each of the Company and the Subsidiary Guarantors, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (ii) the present fair saleable value of the property of each of the
Company and the Subsidiary Guarantors will be greater than the amount that will
be required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) each of the Company and the Subsidiary
Guarantors will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (iv) each of the Company and the Subsidiary Guarantors will not
have unreasonably small capital with which to conduct the business in which it
is engaged as such business is now conducted and is proposed to be conducted
following the Closing Date.
(q) Security Documents. (i) The Third Priority Collateral
Agreement is effective to create, for the ratable benefit of the holders of the
Obligations, a legal, valid and enforceable third priority security interest in
the Collateral (as defined in the Third Priority Collateral Agreement) and, when
such Collateral is delivered to the Collateral Agent and for so long as the
Collateral Agent remains in possession of such Collateral or when financing
statements in appropriate form are filed in the offices specified in the
Perfection Certificate, the security interest created by the Third Priority
Collateral Agreement shall constitute a perfected third priority security
interest in all right, title and interest of the pledgor thereunder in such
Collateral, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Permitted Liens.
(ii) The Third Priority Mortgages are effective to create,
subject to the exceptions listed in each title insurance policy
covering such Mortgage, for the ratable benefit of the holders of the
Obligations, a legal, valid and enforceable Lien on all the applicable
mortgagor's right, title and interest in and to the Mortgaged
Properties thereunder, and when the Third Priority Mortgages are filed
in the offices specified in the Perfection Certificate, the Lien
created by each Third Priority Mortgage shall constitute a perfected
Lien on all right, title and interest of the applicable mortgagor in
such Mortgaged Properties, in each case prior and superior in right to
any other Person, other than with respect to the rights of Persons
pursuant to Liens permitted by Section 4.14.
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(r) Accounting Controls. The Company and its Subsidiaries
maintain systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(s) No Restrictions on Subsidiaries. Other than those
restrictions disclosed to the Administrative Agent and (i) imposed by law or
(ii) existing on the Closing Date, no Restricted Subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such Subsidiary's capital
stock, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such Subsidiary's properties or
assets to the Company or any other Subsidiary of the Company.
(t) Securities Law Exemptions. It is not necessary, in
connection with the issuance and sale of the Securities to the Holders and the
offer, resale and delivery of the Securities by the Holders in the manner
contemplated by this Indenture and the Disclosure Statement, to register the
Securities under the Securities Act.
(u) No Stabilization. Neither the Company nor any of its
Subsidiaries has taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
ARTICLE XIV
Conditions Precedent
SECTION 14.01. Conditions Precedent to Issuance of the
Securities. The obligation of each Class 6 Creditor to acquire Securities on the
Closing Date as provided herein is subject to the performance by the Company and
each of the Subsidiary Guarantors of their respective covenants and other
obligations hereunder and to the following additional conditions:
(a) The representations and warranties of the Company and
the Subsidiary Guarantors contained herein shall be true and correct on the date
hereof and on and as of the Closing Date; and the statements of the Company, the
Subsidiary Guarantors and their respective officers made in any certificates
delivered pursuant to this
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Indenture shall be true and correct on and as of the Closing Date.
(b) The Administrative Agent or its counsel shall have
received copies of each of the Credit Agreements and the Security Documents, in
each case duly executed and delivered by each party thereto.
(c) The Administrative Agent shall have received (i) a
favorable written opinion (addressed to the Administrative Agent, the Collateral
Agent and the Class 6 Creditors and dated the Closing Date) of Xxxxx, Day,
Xxxxxx & Xxxxx, counsel for the Company, substantially in the form of Annex A-1,
and (ii) to the extent such opinion is requested by the Collateral Agent in
connection with the Credit Agreements, a favorable written opinion of local
counsel in each jurisdiction where a Mortgaged Property is located,
substantially in the form of Annex A-2, and, in the case of each such opinion
required by this paragraph, covering such other matters relating to the Company
and the Subsidiary Guarantors, this Indenture, the Security Documents or the
Transactions as the Administrative Agent shall reasonably request. The Company
hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
each of the Company and its Subsidiaries, the authorization of the Transactions
and any other legal matters relating to the Company and the Subsidiary
Guarantors, the Security Documents or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by the Chief Executive Officer of
the Company (or an executive officer of the Company performing a similar
function), (i) confirming that such officer has carefully reviewed the
Disclosure Statement and, to the best knowledge of such officer, the
representation set forth in 13.01(l) hereof is true and correct, (ii) confirming
that the representations and warranties of the Company and the Subsidiary
Guarantors in this Indenture are true and correct and that the Company and
Subsidiary Guarantors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date and (iii) to the effect set forth in paragraph (p) below.
(f) The Administrative Agent and the Class 6 Creditors
shall have received all fees and other amounts due and payable on or prior to
the Closing Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses (including fees, charges and disbursements of
counsel) required to be reimbursed or paid by any of the Company or the
Subsidiary Guarantors hereunder or under any Security Document.
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(g) The Collateral and Guarantee Requirement shall have
been satisfied and the Collateral Agent shall have received (i) a completed
Perfection Certificate dated the Closing Date and signed by a Financial Officer
or chief legal officer of the Company, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Company and the
Subsidiary Guarantors in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the Collateral
Agent that the Liens indicated by such financing statements (or similar
documents) are permitted by Section 4.14 or have been released, (ii) evidence
that the lockbox and concentration account arrangements contemplated by the
Third Priority Collateral Agreement remain in effect, (iii) a copy of the
Intercreditor Agreement duly executed and delivered by each party thereto and
(iv) to the extent requested by the Collateral Agent pursuant to the Credit
Agreements, satisfactory legal opinions, title insurance policies, current
certified surveys, evidence of zoning and other legal compliance, certificate of
occupancy and other permits with respect to the Mortgaged Property.
(h) The Collateral Agent shall have received evidence
that the insurance required by the Security Documents is in effect.
(i) The Administrative Agent shall have received from the
Company (i) audited consolidated balance sheets and related statements of
operations, stockholders' equity and cash flows for the Company as of and for
the fiscal years ended December 31, 1999, December 31, 2000, and December 31,
2001, and (ii) unaudited consolidated balance sheets and related statements of
operations, stockholders' equity and cash flows for the Company for (x) the
fiscal quarters ended March 31, 2002, June 30, 2002, and September 30, 2002, and
(y) each fiscal month after the most recent fiscal period for which financial
statements were received by the Administrative Agent as described above and
ended at least 30 days prior to the Closing Date, in each case prepared in
accordance with GAAP and, in the case of the financial statements delivered
pursuant to clause (ii), which financial statements shall not be materially
inconsistent with the financial statements or forecasts previously delivered to
the Administrative Agent. In addition, the Administrative Agent shall have
received a pro forma consolidated balance sheet for the Company as of the
Closing Date after giving effect to the Transactions, which shall not be
materially inconsistent with the forecasts previously provided to the
Administrative Agent.
(j) Simultaneously with or prior to the Closing Date, (i)
not more than [$240,050,000] shall be outstanding under the Senior Secured Term
Loan Credit Agreement and (ii) not more than $[50,000,000] shall be outstanding
under the Senior Secured Revolving Credit Agreement. The Administrative Agent
shall have received copies of the Credit Agreements certified by a Financial
Officer as complete and correct.
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(k) The Court shall have entered the Order, which shall
be satisfactory in form and substance to the Administrative Agent and (i) the
Order shall be in full force and effect, (ii) the Order shall be subject to any
stay and there shall not have been entered by the Court any reversal,
modification or vacatur, in whole or in part, of the Order, (iii) all the
conditions set forth in the Plan to confirmation of the Plan and to the
effective date of the Plan shall have been satisfied or waived in accordance
with the Plan, (iv) all other requisite Governmental Authorities and third
parties shall have approved or consented to the Transactions and the other
transactions contemplated hereby or thereby to the extent required or deemed
advisable by the Administrative Agent and its counsel (and such approvals shall
be in full force and effect and all appeal periods with respect thereto shall
have expired) and (v) the Transactions shall be consummated in accordance with
the terms thereof described in the Disclosure Statement.
(l) Simultaneously with or prior to the Closing Date, Old
WKI and the Old Subsidiaries shall have emerged from the Chapter 11 proceedings
and "substantial consummation" of the Plan (within the meaning of Section
11.01(2) of the Bankruptcy Code) shall have occurred (without giving effect to
any waivers, amendments or other modifications to the Plan not approved by the
Administrative Agent).
(m) The Administrative Agent shall have received (i) a
detailed business plan of the Company and its Subsidiaries for the remainder of
the [2002 fiscal year and the] 2003 fiscal year and (ii) financial projections
for the Company and its Subsidiaries for [the remainder of the 2002 fiscal year
and for] each fiscal year from 2003 through 2007 prepared in accordance with
GAAP and in good faith by the Company under assumptions believed to be
reasonable at the time made and on the Closing Date, in each case in form and
substance reasonably satisfactory to the Administrative Agent.
(n) There shall be no litigation, arbitration or
administrative proceeding or consent decree that would reasonably be expected,
after giving effect to the Transactions and the other transactions contemplated
thereby, to have a Material Adverse Effect or have a material adverse effect on
the ability of the parties to consummate the Transactions and the other
transactions contemplated thereby.
(o) The consummation of the Transactions and the other
transactions contemplated thereby shall not (i) violate any applicable law,
statute, consent decree, rule or regulation, (ii) conflict with, or result in a
default or event of default under, any material agreement of the Company or any
Subsidiary or (iii) give rise to a right to require any payment to be made by
the Company or any Subsidiary or result in the creation of any Lien (other than
Permitted Liens) under any agreement evidencing any indebtedness of the Company
or any Subsidiary.
(p) There shall not have occurred a material adverse
change in the business, operations, properties, assets, condition (financial or
otherwise), liabilities
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(including contingent liabilities) or prospects of the Company and its
Subsidiaries, taken as a whole, since December 31, 2001, other than any material
adverse change disclosed in the Plan or the Disclosure Statement.
(q) The Securities shall have been approved by the NASD
for trading in the PORTAL Market and shall be eligible for clearance and
settlement through DTC.
(r) Neither the issuance, sale and delivery of the
Securities nor the application of the proceeds thereof by the Company as
described in the Plan will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of
Governors.
All opinions, letters, certificates and evidence mentioned
above or elsewhere in this Indenture shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
ARTICLE XV
Collateral and Security
SECTION 15.01. Security Documents. The due and punctual
payment of the principal of and interest on the Securities when and as the same
shall be due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest on the Securities and performance of all other
obligations of the Company and Subsidiary Guarantors to the Holders or the
Trustee under this Indenture and the Securities, according to the terms
hereunder or thereunder, are secured as provided in the Security Documents which
the Company and the Subsidiary Guarantors have entered into simultaneously with
the execution of this Indenture, subject to the terms of the Intercreditor
Agreement. Each Holder, by its acceptance thereof, consents and agrees to the
terms of the Security Documents (including the provisions providing for
foreclosure and release of Collateral) as the same may be in effect or may be
amended from time to time in accordance with its terms and authorizes and
directs the Collateral Agent to enter into the Security Documents and to perform
its obligations and exercise its rights thereunder in accordance therewith. The
Company and Subsidiary Guarantors shall deliver to the Trustee copies of all
documents delivered to the Collateral Agent pursuant to the Security Documents,
and will do or cause to be done all such acts and things as may be required by
the next sentence of this Section 15.01, to assure and confirm to the Trustee
and the Collateral Agent the security interest in the Collateral contemplated
hereby, by the Security Documents or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the
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Securities secured hereby, according to the intent and purposes herein
expressed. The Company shall take, and shall cause its Restricted Subsidiaries
to take, any and all actions reasonably required to cause the Security Documents
to create and maintain, as security for the Obligations of the Company and the
Subsidiary Guarantors hereunder, a valid and enforceable perfected third
priority Lien and security interest in and on all the Collateral, in favor of
the Collateral Agent for the benefit of the Holders, third in priority (subject
to Permitted Liens) to any and all security interests at any time granted in the
Collateral to secure Credit Agreement Obligations.
SECTION 15.02. Recording and Opinions. (a) The Company will
furnish to the Collateral Agent and the Trustee on [December 31] in each year
beginning with [December 31, 2003], an Opinion of Counsel, which may be rendered
by internal counsel to the Company, dated as of such date, either:
(i) (A) stating that, in the opinion of such counsel,
action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and re-filing of all supplemental
indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain and
perfect the Lien of the Security Documents and reciting with respect to
the security interests in the Collateral the details of such action or
referring to prior Opinions of Counsel in which such details are given,
and (B) stating that, in the opinion of such counsel, based on relevant
laws as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months
fully to preserve, perfect and protect, to the extent such protection
and preservation are possible by filing, the rights of the Holders and
the Collateral Agent and the Trustee hereunder and under the Security
Documents with respect to the security interests in the Collateral; or
(ii) stating that, in the opinion of such counsel, no such
action is necessary to maintain and perfect such Lien and assignment.
(b) The Company will otherwise comply with the provisions
of TIAss. 314(b).
SECTION 15.03. Release of Collateral. (a) Subject to
subsections (b), (c) and (d) of this Section 15.03, Collateral may be released
from the Lien and security interest created by the Security Documents at any
time or from time to time in accordance with the provisions of the Security
Documents, or as provided hereby. Whether prior to or after the termination of
Credit Agreement Obligations, upon the request of the Company pursuant to an
Officers' Certificate certifying that all conditions precedent hereunder have
been met and without the consent of any Holder, the Company and the Subsidiary
Guarantors will be entitled to releases of assets included in the Collateral
from
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the Liens securing the Securities under any one or more of the following
circumstances:
(i) if all other Liens on that asset securing Credit
Agreement Obligations then secured by that asset (including all
commitments thereunder) are released; provided, that after giving
effect to the release, obligations secured by the first priority and
second priority Liens on the remaining Collateral remain outstanding;
(ii) to enable the Company or any Subsidiary Guarantor to
consummate any sale, lease, conveyance or other disposition of any
assets or rights permitted or not prohibited under Section 4.06 hereof;
(iii) if the Company provides substitute collateral with at
least an equivalent fair value, as determined in good faith by the
Board of Directors;
(iv) in respect of assets subject to a permitted purchase
money lien;
(v) if all of the stock of any Subsidiary of the Company
that is pledged to the Collateral Agent is released or if any
Subsidiary that is a Subsidiary Guarantor is released from its
Subsidiary Guarantee, such Subsidiary's assets will also be released;
(vi) pursuant to an amendment, waiver or supplement in
accordance with Article 9 hereof; or
(vii) if all of the Capital Stock of such Subsidiary
Guarantor shall be sold, transferred or otherwise disposed of in a
transaction permitted by this Indenture and if such Subsidiary
Guarantor's assets are released under the Credit Agreements, the Liens
securing such Subsidiary Guarantor's assets will be released.
Upon receipt of such Officers' Certificate, the Collateral
Agent shall execute, deliver or acknowledge any necessary or proper instruments
of termination, satisfaction or release to evidence the release of any
Collateral permitted to be released pursuant to this Indenture or the Security
Documents.
(b) Except as otherwise provided in the Intercreditor
Agreement, no Collateral may be released from the Lien and security interest
created by the Security Documents pursuant to the provisions of the Security
Documents unless the Officers' Certificate required by this Section 15.03 has
been delivered to the Collateral Agent.
(c) At any time when a Default or Event of Default has
occurred and is continuing and the maturity of the Securities has been
accelerated (whether by declaration or otherwise) and the Trustee has delivered
a notice of acceleration to the Collateral
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Agent, no release of Collateral pursuant to the provisions of the Security
Documents will be effective as against the Holders, except as otherwise provided
in the Intercreditor Agreement.
(d) The release of any Collateral from the terms of this
Indenture and the Security Documents shall not be deemed to impair the security
under this Indenture in contravention of the provisions hereof if and to the
extent the Collateral is released pursuant to the terms of the Security
Documents and this Indenture. To the extent applicable, the Company will cause
TIA ss. 313(b), relating to reports, and TIA ss. 314(d), relating to the release
of property or securities from the Lien and security interest of the Security
Documents and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Security
Documents, to be complied with. Any certificate or opinion required by TIA ss.
314(d) may be made by an Officer of the Company except in cases where TIA ss.
314(d) requires that such certificate or opinion be made by an independent
Person, which Person will be an independent engineer, appraiser or other expert
selected or approved by the Trustee and the Collateral Agent in the exercise of
reasonable care.
SECTION 15.04. Certificates and Opinions of Counsel. To the
extent applicable, the Company will furnish to the Trustee and the Collateral
Agent, prior to each proposed release of Collateral pursuant to the Security
Documents:
(a) all documents required by TIA ss.314(d); and
(b) an Opinion of Counsel, which may be rendered by
internal counsel to the Company, to the effect that such accompanying documents
constitute all documents required by TIA ss. 314(d).
The Trustee may, to the extent permitted by Sections 7.01 and
7.02 hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
SECTION 15.05. Certificates of the Trustee. In the event that
the Company wishes to release Collateral in accordance with the Security
Documents and have delivered the certificates and documents required by the
Security Documents and Sections 15.03 and 15.04 hereof, the Trustee will
determine whether it has received all documentation required by TIA ss. 314(d)
in connection with such release and, based on such determination and the Opinion
of Counsel delivered pursuant to Section 15.04(b), will deliver a certificate to
the Collateral Agent setting forth such determination.
SECTION 15.06. Authorization of Actions to Be Taken by the
Trustee Under the Security Documents. Subject to the provisions of Section 7.01
and 7.02 hereof and the Intercreditor Agreement, the Trustee may, in its sole
discretion and without the
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consent of the Holders, direct, on behalf of the Holders, the Collateral Agent
to, take all actions it deems necessary or appropriate in order to:
(a) enforce any of the terms of the Security Documents;
and
(b) collect and receive any and all amounts payable in
respect of the Obligations of the Company hereunder.
Subject to the Intercreditor Agreement, the Trustee will have
power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents 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 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
interest hereunder or be prejudicial to the interests of the Holders or of the
Trustee).
SECTION 15.07. Authorization of Receipt of Funds by the
Trustee Under the Security Documents. The Trustee is authorized to receive any
funds for the benefit of the Holders distributed under the Security Documents,
and to make further distributions of such funds to the Holders according to the
provisions of this Indenture.
SECTION 15.08. Termination of Security Interest. The Trustee
will, at the request of the Company, deliver a certificate to the Collateral
Agent stating that such Obligations have been paid in full, and instruct the
Collateral Agent to release the Liens pursuant to this Indenture and the
Security Documents upon (a) payment in full of the principal of, and accrued and
unpaid interest on, the Securities and all other obligations under this
Indenture, the Subsidiary Guarantees and the Security Documents that are due and
payable at or prior to the time such principal and accrued and unpaid interest
are paid, (b) a satisfaction and discharge of this Indenture as described in
Article 8 or (c) a legal defeasance or covenant defeasance as described in
Article 8. Upon receipt of such instruction, the Collateral Agent shall execute,
deliver or acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of all such Liens.
SECTION 15.09. Collateral Agent. (a) The Trustee shall be
authorized to appoint co-Collateral Agents as necessary in its sole discretion.
Except as otherwise explicitly provided herein or in the Security Documents,
neither the Collateral Agent nor any of its respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
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any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The Collateral Agent shall be accountable only
for amounts that it actually receives as a result of the exercise of such
powers, and neither the Collateral Agent nor any of its officers, directors,
employees or agents shall be responsible for any act or failure to act
hereunder, except for its own willful misconduct, negligence or bad faith.
(b) The Collateral Agent, is authorized and directed to
(i) enter into the Security Documents, (ii) bind the Holders on the terms as set
forth in the Security Documents and (iii) perform and observe its obligations
under the Security Documents .
(c) If the Company (i) incurs Indebtedness constituting
Credit Agreement Obligations at any time when no Intercreditor Agreement is in
effect or at any time when Indebtedness constituting Credit Agreement
Obligations entitled to the benefit of an existing Intercreditor Agreement is
concurrently retired and (ii) delivers to the Collateral Agent an Officers'
Certificate so stating and requesting the Collateral Agent to enter into an
Intercreditor Agreement in favor of a designated agent or representative for the
holders of the Indebtedness so incurred, the Collateral Agent shall (and is
hereby authorized and directed to) enter into such Intercreditor Agreement, bind
the Holders on the terms set forth therein, and perform and observe its
obligations thereunder.
SECTION 15.10. Designations. For purposes of the designation
of Indebtedness as "Credit Agreement Obligations", "First Lien Credit
Facilities", "Second Lien Credit Facilities" or any other such designations
hereunder or under the Intercreditor Agreement, any such designation shall be
sufficient if the relevant designation is set forth in writing, signed on behalf
of the Company by an Officer and delivered to the Collateral Agent and the
Administrative Agent. For all purposes hereof and under the Intercreditor
Agreement, the Company hereby designates the Credit Facility under the Senior
Secured Revolving Credit Agreement as a First Lien Credit Facility, the Credit
Facility under the Senior Secured Term Loan Credit Agreement as a Second Lien
Credit Facility and any obligations in respect of the Credit Agreements as
Credit Agreement Obligations.
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ARTICLE XVI
Miscellaneous
SECTION 16.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.
SECTION 16.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
WKI Holding Company, Inc.
00000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention of:
Treasurer
if to the Trustee:
State Street and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention of:
Corporate Trust Department
Ref: World Kitchen 2002
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be
mailed, first class mail, to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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, it is duly
given, whether or not the addressee receives it.
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SECTION 16.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the TIA.
SECTION 16.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 16.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 4.09)
shall include:
(a) a statement that the individual 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 individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with.
SECTION 16.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company,
any Subsidiary Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Subsidiary Guarantor shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent,
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only Securities which the Trustee knows are so owned shall be so disregarded.
Subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 16.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 16.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or other day on which banking institutions are not required
by law or regulation to be open in the State of New York or the state in which
the Trustee's corporate trust office is located. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 16.09. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 16.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company or any of the
Subsidiary Guarantors, shall not have any liability for any obligations of the
Company or any of the Subsidiary Guarantors under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 16.11. Successors. All agreements of the Company and
each Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 16.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 16.13. Table of Contents; Headings. The table of
contents, cross- reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
WKI HOLDING COMPANY, INC.,
by
----------------------------------------
Name:
Title:
[GUARANTORS],
by
----------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee,
by
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Name:
Title:
SCHEDULE 1
Subsidiary Guarantors:
[ ]
SCHEDULE 2
Subsidiaries
[ ]
ANNEX A-1
[Form of Opinion of Xxxxx, Day, Xxxxxx & Xxxxx]
ANNEX A-2
[Form of Opinion of Local Counsel]
APPENDIX A
PROVISIONS RELATING TO SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Clearstream" means Clearstream Banking, societe anonyme, or
any successor securities clearing agency.
"Definitive Security" means a certificated Security (bearing
the Restricted Securities Legend if the transfer of such Security is restricted
by applicable law) that does not include the Global Securities Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means the Euroclear Clearance System or any
successor securities clearing agency.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Restricted Period", with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (a) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S, notice of which day shall be promptly given by the Company to
the Trustee, and (b) the Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(d)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
2
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the Restricted
Securities Legend.
1.2 Other Definitions
Term: Defined in Section:
---- ------------------
"Agent Members" .................................................. 2.1(c)
"IAI Global Security".................................................. 2.1(b)
"Global Security" .................................................. 2.1(b)
2. The Securities
2.1 Form and Dating
(a) The Securities issued on the date hereof will
transferred by the Company to the Holders pursuant to the Plan.
(b) Global Securities. The Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Global Security") without interest
coupons and bearing the Global Securities Legend and Restricted Securities
Legend, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Securities Custodian, and registered in the name of
the Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. One or more global
securities in definitive, fully registered form without interest coupons and
bearing the Global Securities Legend and the Restricted Securities Legend
(collectively, the "IAI Global Security") shall also be issued on the Closing
Date, deposited with the Securities Custodian, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture to accommodate
transfers of beneficial interests in the Securities to IAIs subsequent to the
initial distribution. The Global Security and the IAI Global Security are each
referred to herein as a "Global Security" and are collectively referred to
herein as "Global Securities". The aggregate principal amount of the Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee and on the
schedules thereto as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall
apply only to a Global Security deposited with or on behalf of the Depositary.
3
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(c) and Section 2.2 and pursuant to an order of the Company
signed by two Officers, authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (ii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(d) Definitive Securities. Except as provided in Section
2.3 or 2.4, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make
available for delivery upon a written order of the Company signed by two
Officers Securities for original issue on the date hereof in an aggregate
principal amount of $123,150,000. Such order shall specify the amount of the
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed $123,150,000 except as provided in
Sections 2.07 and 2.08 of this Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a
request:
(i) to register the transfer of such Definitive
Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer
4
in form reasonably satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing; and
(2) in the case of Transfer Restricted Securities, are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect (in the form set forth on the
reverse side of the Security); or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that effect (in
the form set forth on the reverse side of the Security).
(b) Restrictions on Transfer of a Definitive Security for
a Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
together with:
(i) certification (in the form set forth on the reverse
side of the Security) that such Definitive Security is being
transferred to an IAI that has furnished to the Trustee a signed letter
substantially in the form of Exhibit C; and
(ii) written instructions directing the Trustee to make,
or to direct the Securities Custodian to make, an adjustment on its
books and records with respect to such Global Security to reflect an
increase in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with such
increase, then the Trustee shall cancel such Definitive Security and
cause, or direct the Securities Custodian to cause, in accordance with
the standing instructions and procedures existing between the
Depositary and the Securities Custodian, the aggregate principal amount
of Securities represented by the Global Security to be increased by the
aggregate principal amount of the Definitive Security to be exchanged
and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global
Security equal to the principal amount of the Definitive Security so
canceled. If no Global Securities are then outstanding and the Global
Security has not been previously exchanged for certificated securities
pursuant to Section 2.4, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Security in the appropriate
principal amount.
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(c) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global
Security shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Security or
another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Security being transferred.
(ii) If the proposed transfer is a transfer of a
beneficial interest in one Global Security to a beneficial interest in
another Global Security, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Security to which such interest is being transferred in an amount equal
to the principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(d) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) or (iv), each Security certificate evidencing
the Global Securities and the Definitive Securities (and all Securities
issued in exchange therefor or in substitution thereof) shall bear a
legend in substantially the following form (each defined term in the
legend being defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
6
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE."
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY
7
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
(e) Cancelation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges
of Securities.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate,
Definitive Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchanges pursuant to Sections 2.06, 3.06, 4.06, 4.08 and 9.05 of
this Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
8
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Security, a member of,
or a participant in the Depositary or any other Person with respect to
the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants, members or
beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
2.4 Definitive Securities
(a) A Global Security deposited with the Depositary or
with the Trustee as Securities Custodian pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies the Company
that it is unwilling or unable to continue as a Depositary for such Global
Security or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Company within 90 days of such notice or after
9
the Company becomes aware of such cessation, or (ii) an Event of Default has
occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by
the Depositary to the Trustee, to be so transferred, in whole or from time to
time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(d), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security 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 Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
EXHIBIT A
[FORM OF FACE OF SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
2
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
No. $__________
12% Senior Subordinated Note due 20[09]
CUSIP No. ______
WKI Holding Company, Inc., a Delaware corporation, promises to
pay to [Cede & Co.], or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Security attached
hereto]1 on [ ], [ ].
Interest Payment Dates: [ ] and [ ].
Record Dates: [ ] and [ ].
--------
(1) Use the Schedule of Increases and Decreases language if Note
is in Global Form.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
WKI HOLDING COMPANY, INC.,
by
----------------------------------------
Name:
Title:
[by
----------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
----------------------------------------
Authorized Signatory
--------------
*/ If the Security is to be issued in global form, add the Global
Securities Legend and the - attachment from Exhibit A captioned "TO BE ATTACHED
TO GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF SECURITY]
12% Senior Subordinated Note due 20[09]
1. Interest
WKI Holding Company, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
shall pay interest semiannually on [ ] and [ ] of each year. Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided for,
from [December 31, 2002] until the principal hereof is due. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months. [The Company
shall pay interest on overdue principal at the rate borne by the Securities plus
1% per annum, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.]
2. Method of Payment
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the [ ] or [ ] next preceding the interest payment date even if
Securities are canceled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company shall pay principal, premium, if any, and
interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium, and
interest, if any) shall be made by wire transfer of immediately available funds
to the accounts specified by The Depository Trust Company or any successor
depositary. The Company will make all payments in respect of a certificated
Security (including principal, premium, and interest, if any), at the office of
the Paying Agent, except that, at the option of the Company, payment of interest
may be made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company, a
Massachusetts trust
2
company (the "Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent or Registrar without notice. The Company or
any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent or Registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of [December 31, 2002], (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions.
The Securities are senior subordinated secured obligations of
the Company limited to $123,150,000 aggregate principal amount at any one time
outstanding (subject to Sections 2.07 and 2.08 of the Indenture). This Security
is one of the Securities referred to in the Indenture. The Securities are
treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the ability of the Company and its Restricted
Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, issue or sell shares of capital
stock of such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens and make asset sales. The Indenture also
imposes limitations on the ability of the Company and each Subsidiary Guarantor
to consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all its property.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Subsidiary Guarantors have jointly and
severally unconditionally guaranteed the Guaranteed Obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Company prior to [December 31,
2007]. Thereafter, the Securities shall be redeemable at the option of the
Company, in whole or in part, on not less than 30 nor more than 60 days prior
notice, at the following redemption prices (expressed as percentages of
principal amount), plus accrued and unpaid interest to the redemption date
3
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on [December 31] of the years set forth below:
REDEMPTION
YEAR PRICE
---- -----------
200[7] 105.50%
200[8] 102.75%
200[9] and thereafter 100.000%
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of
Control and Asset Dispositions
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest to the date of repurchase (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date that is on or prior to the
date of purchase) as provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Subordination
The Securities and Subsidiary Guarantees are subordinated to
Senior
4
Indebtedness, as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness must be paid before the Securities and Subsidiary
Guarantee may be paid. The Company and each Subsidiary Guarantor agrees, and
each Holder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
11. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent shall pay the money
back to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look to the Company for payment as general creditors and the Trustee and
the Paying Agent shall have no further liability with respect to such monies.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal of, and interest on, the Securities to redemption
or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of
5
the Holders of at least a majority in aggregate principal amount of the
outstanding Securities and (ii) any default may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Company, the Subsidiary
Guarantors and the Trustee may amend the Indenture or the Securities (i) to cure
any ambiguity, omission, defect or inconsistency; (ii) to comply with Article 5
of the Indenture; (iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; (iv) to add Subsidiary Guarantees with
respect to the Securities; (v) to add additional security for the Securities;
(vi) to add additional covenants or to surrender rights and powers conferred on
the Company; (vii) to comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture under the TIA; (viii) to make any
change that does not adversely affect the rights of any Holder; or (ix) to make
any change in the subordination provisions of the Indenture that would limit or
terminate the benefits available to any holder of Senior Indebtedness of the
Company (or any Representative thereof) under such subordination provisions.
15. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding
Securities may rescind any such acceleration with respect to the Securities and
its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Securities have requested the Trustee in writing to
pursue the remedy, (iii) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense, (iv) the Trustee
has not complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a
6
majority in principal amount of the outstanding Securities are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or the Indenture or that the Trustee determines is unduly prejudicial
to the rights of any other Holder or that would involve the Trustee in personal
liability. Prior to taking any action under the Indenture, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. 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 rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITH
7
OUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
21. CUSIP Numbers
The Company has caused CUSIP numbers to be printed on the
Securities and has directed the Trustee to 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 Securities 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 OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security 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 other side of this Security.
9
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
- has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
- has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) - to the Company; or
(2) - to the Registrar for registration in the name of the
Holder, without transfer; or
(3) - pursuant to an effective registration statement under
the Securities Act of 1933; or
(4) - inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
(5) - outside the United States in an offshore transaction
within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under
the Securities Act of 1933 and such Security shall be
held immediately after the transfer through Euroclear
or Clearstream until
10
the expiration of the Restricted Period (as defined
in the Indenture); or
(6) - to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain
representations and agreements; or
(7) - pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however,
that if box (5), (6) or (7) is checked, the Trustee may require, prior
to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
--------------------------------
Your Signature
Signature Guarantee:
Date:
-------------------------- --------------------------------
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
--------------------------------------------------------------------------------
11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
12
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
ASSET DISPOSITION - CHANGE OF CONTROL -
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY
PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE,
STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: YOUR SIGNATURE:
-------------------- --------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:
----------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR
OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR] (the "New
Guarantor"), a subsidiary of WKI HOLDING COMPANY, INC. (or its
successor), a Delaware corporation (the "Company"), [EXISTING
GUARANTORS] and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company and [OLD GUARANTORS] (the "Existing
Guarantors") has heretofore executed and delivered to the Trustee an Indenture
(the "Indenture") dated as of [December 31, 2002], providing for the issuance of
an aggregate principal amount of up to $123,150,000 of 12% Senior Subordinated
Notes due 20[09] (the "Securities");
WHEREAS Section 4.11 of the Indenture provides that under
certain circumstances the Company is required to cause the New Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall unconditionally guarantee all the Company's obligations
under the Securities pursuant to a Subsidiary Guarantee on the terms and
conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Company and the Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby
agrees, jointly and severally with all the Existing Guarantors, to
unconditionally guarantee the Company's obligations under the Securities on the
terms and subject to the conditions set forth in Articles 11 and 12 of the
Indenture and to be bound by all other applicable provisions of the Indenture
and the Securities.
2. Ratification of Indenture; Supplemental Indentures
Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
2
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
6. Effect of Headings. The Section headings herein are
for convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
----------------------------------------
Name:
Title:
WKI HOLDING COMPANY, INC.,
by
----------------------------------------
Name:
Title:
[EXISTING GUARANTORS],
by
----------------------------------------
Name:
Title:
0
XXXXX XXXXXX BANK AND TRUST
COMPANY, as Trustee,
by
----------------------------------------
Name:
Title:
EXHIBIT C
Form of
Transferee Letter of Representation
[Company]
In care of
[ ]
[ ]
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $123,150,000
principal amount of the 12% Senior Subordinated Notes due 2009 (the
"Securities") of WKI Holding Company, Inc. (the "Company").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:
------------------------------
Address:
---------------------------
Taxpayer ID Number:
----------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")), purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Securities, and we are acquiring the Securities not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our investment in
the Securities, and we invest in or purchase securities similar to the
Securities in the normal course of our business. We, and any accounts for which
we are acting, are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following
2
sentence. We agree on our own behalf and on behalf of any investor account for
which we are purchasing Securities to offer, sell or otherwise transfer such
Securities prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Securities (or any predecessor thereto) (the
"Resale Restriction Termination Date") only (a) to the Company, (b) pursuant to
a registration statement that has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act ("Rule 144A"), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of $250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to the offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Securities pursuant to clause (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:
-------------------------------,
by
----------------------------------------