EXHIBIT 99.1(T3C)
EXECUTION COPY
XXXXXXXXX XXXXX CORPORATION
as obligor
$50,000,000
10% Secured Subordinated Notes due 2007
And Guaranteed by
XXXXX XXXXXX HOLDINGS CORP.
and
XXXXXXXXX XXXXX (CANADA) CORPORATION
---------------------------------
INDENTURE
Dated as of November 1, 2002
---------------------------------
BNY MIDWEST TRUST COMPANY,
Trustee
EXECUTION COPY
CROSS REFERENCE TABLE HERE*
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- ---------
310(a)(1) -------------------------------------------------------- 7.10
(a)(2) -------------------------------------------------------- 7.10
(a)(3) -------------------------------------------------------- 7.13
(a)(4) -------------------------------------------------------- N.A.
(a)(5) -------------------------------------------------------- 7.10
(b) ----------------------------------------------------------- 7.8; 7.10
(c)------------------------------------------------------------ N.A.
311(a)------------------------------------------------------------ 7.11
(b) ----------------------------------------------------------- 7.11
(c)------------------------------------------------------------ N.A.
312(a)------------------------------------------------------------ 2.5
(b) ----------------------------------------------------------- 12.3
(c)------------------------------------------------------------ 12.3
313(a)------------------------------------------------------------ 7.6
(b)(1)--------------------------------------------------------- 7.6
(b)(2)--------------------------------------------------------- 7.6
(c)------------------------------------------------------------ 7.6
(d) ----------------------------------------------------------- 7.6
314(a)------------------------------------------------------------ 4.3; 4.4
(b) ----------------------------------------------------------- 10.2
(c)(1) -------------------------------------------------------- 12.4
(c)(2) -------------------------------------------------------- 12.4
(c)(3) -------------------------------------------------------- N.A.
(d) ----------------------------------------------------------- 10.3
(e)------------------------------------------------------------ 12.5
(f)------------------------------------------------------------ 12.5
315(a)------------------------------------------------------------ 7.1(2)
(b) ----------------------------------------------------------- 7.5
(c)------------------------------------------------------------ 7.1(1)
(d) ----------------------------------------------------------- 7.1(3)
(e)------------------------------------------------------------ 6.11
316(a)(last sentence)--------------------------------------------- 2.9
(a)(1)(A) ----------------------------------------------------- 6.5
(a)(1)(B) ----------------------------------------------------- 6.4
(a)(2)--------------------------------------------------------- N.A.
(b) ----------------------------------------------------------- 9.2
(c)------------------------------------------------------------ 9.4
317(a)(1) -------------------------------------------------------- 6.8
(a)(2) -------------------------------------------------------- 6.9
(b) ----------------------------------------------------------- 2.4
318(a)------------------------------------------------------------ 12.1
(b)------------------------------------------------------------ N.A.
(c)------------------------------------------------------------ 12.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the
Indenture.
EXECUTION COPY
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions...............................................................................1
Section 1.2. Other Definitions........................................................................14
Section 1.3. Incorporation By Reference Of Trust Indenture Act........................................14
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating..........................................................................15
Section 2.2. Execution and Authentication.............................................................16
Section 2.3. Registrar, Paying Agent and Depository...................................................16
Section 2.4. Paying Agent to Hold Money in Trust......................................................17
Section 2.5. Holder Lists.............................................................................17
Section 2.6. Transfer and Exchange....................................................................17
Section 2.7. Replacement Notes........................................................................21
Section 2.8. Outstanding Notes........................................................................21
Section 2.9. Treasury Notes...........................................................................21
Section 2.10. Temporary Notes..........................................................................22
Section 2.11. Cancellation.............................................................................22
Section 2.12. Defaulted Interest.......................................................................22
Section 2.13. Legends..................................................................................23
Section 2.14. Election to Pay Interest in Kind.........................................................23
Section 2.15. CUSIP Numbers............................................................................23
ARTICLE 3
REDEMPTION
Section 3.1. Notices to Trustee.......................................................................24
Section 3.2. Selection Of Notes To Be Redeemed........................................................24
Section 3.3. Notice of Redemption.....................................................................24
Section 3.4. Effect of Notice of Redemption...........................................................25
Section 3.5. Deposit of Redemption Price..............................................................25
Section 3.6. Notes Redeemed in Part...................................................................26
Section 3.7. Optional Redemption......................................................................26
ARTICLE 4
COVENANTS
Section 4.1. Payment of Notes.........................................................................26
Section 4.2. Maintenance of Office or Agency..........................................................26
Section 4.3. Reports..................................................................................27
Section 4.4. Compliance Certificate...................................................................27
Section 4.5. Taxes....................................................................................28
Section 4.6. Stay, Extension and Usury Laws...........................................................28
Section 4.7. Limitation on Restricted Payments........................................................28
Section 4.8. Limitation on Restrictions on Subsidiary Dividends.......................................30
Section 4.9. Limitation On Incurrence Of Indebtedness.................................................31
Section 4.10. Limitation On Asset Sales................................................................32
Section 4.11. Limitation on Transactions with Affiliates...............................................35
Section 4.12. Limitation on Liens......................................................................36
Section 4.13. Corporate Existence......................................................................36
Section 4.14. Repurchase Upon a Change of Control......................................................36
Section 4.15. Maintenance of Properties................................................................38
Section 4.16. Maintenance of Insurance.................................................................38
Section 4.17. Restrictions on Sale And Issuance of Subsidiary Stock....................................38
Section 4.18. Line of Business.........................................................................38
Section 4.19. Compliance with Laws.....................................................................38
Section 4.20. Environmental............................................................................39
Section 4.21. Change in Location of Chief Executive Office.............................................39
ARTICLE 5
SUCCESSORS
Section 5.1. When the Company May Merge, etc..........................................................39
Section 5.2. Successor Substituted....................................................................40
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default........................................................................40
Section 6.2. Acceleration.............................................................................43
Section 6.3. Other Remedies...........................................................................44
Section 6.4. Waiver of Past Defaults..................................................................44
Section 6.5. Control by Majority......................................................................44
Section 6.6. Limitation on Suits......................................................................44
Section 6.7. Rights of Holders to Receive Payment.....................................................45
Section 6.8. Collection Suit by Trustee...............................................................45
Section 6.9. Trustee May File Proofs of Claim.........................................................45
Section 6.10. Priorities...............................................................................46
Section 6.11. Undertaking for Costs....................................................................46
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee........................................................................46
Section 7.2. Rights of Trustee........................................................................48
Section 7.3. Individual Rights of Trustee.............................................................50
Section 7.4. Trustee's Disclaimer.....................................................................50
Section 7.5. Notice of Defaults.......................................................................50
-ii-
Section 7.6. Reports by Trustee to Holders............................................................50
Section 7.7. Compensation and Indemnity...............................................................51
Section 7.8. Replacement of Trustee...................................................................51
Section 7.9. Successor Trustee by Xxxxxx, etc.........................................................53
Section 7.10. Eligibility; Disqualification............................................................53
Section 7.11. Preferential Collection of Claims Against Company........................................53
Section 7.12. Appointment as Fonde de Pouvoir..........................................................53
Section 7.13. Appointment of Canadian Co-Trustee.......................................................54
ARTICLE 8
DISCHARGE OF
INDENTURE
Section 8.1. Termination of Company's Obligations.....................................................55
Section 8.2. Application of Trust Money...............................................................57
Section 8.3. Repayment to the Company.................................................................57
Section 8.4. Reinstatement............................................................................57
ARTICLE 9
AMENDMENTS
Section 9.1. Without Consent of Holders...............................................................58
Section 9.2. With Consent of Holders..................................................................58
Section 9.3. Compliance With Trust
Indenture Act......................................................60
Section 9.4. Revocation and Effect of Consents........................................................60
Section 9.5. Notation on or Exchange of Notes.........................................................60
Section 9.6. Trustee to Sign Amendments, etc..........................................................60
Section 9.7. Payments for Consent.....................................................................61
ARTICLE 10
COLLATERAL AND SECURITY AND GUARANTY
Section 10.1. Collateral Documents.....................................................................61
Section 10.2. Opinions.................................................................................62
Section 10.3. Release of Collateral....................................................................62
Section 10.4. Disposition of Collateral without Release................................................62
Section 10.5. Authorization of Actions to be Taken by the Trustee under the Security Documents.........63
Section 10.6. Authorization of Receipt of Funds by the Trustee under the Security Documents............64
Section 10.7. Guaranty.................................................................................64
Section 10.8. Limitation on Guarantor's Liability......................................................66
Section 10.9. Rights Under the Guaranty................................................................66
Section 10.10. Primary Obligations......................................................................67
Section 10.11. Release of Guarantors....................................................................67
Section 10.12. Guarantee of Xxxxxxxxx Xxxxx (Canada) and LS Holdings....................................67
-iii-
ARTICLE 11
SUBORDINATION
Section 11.1. Agreement to Subordinate.................................................................67
Section 11.2. Liquidation; Dissolution; Bankruptcy.....................................................68
Section 11.3. Default on Senior Debt...................................................................68
Section 11.4. Acceleration of Notes; Remedies; Amendments..............................................69
Section 11.5. When Distribution Must Be Paid Over......................................................71
Section 11.6. Amendments...............................................................................71
Section 11.7. Subrogation..............................................................................71
Section 11.8. Relative Rights..........................................................................72
Section 11.9. Subordination May Not Be Impaired by Company.............................................72
Section 11.10. Distribution or Notice to Representative.................................................72
Section 11.11. Right of Trustee and Paying Agent........................................................72
Section 11.12. Authorization to Effect Subordination....................................................73
Section 11.13. Covenants................................................................................73
Section 11.14. Trustee Not Fiduciary for Holders of Senior Indebtedness.................................74
ARTICLE 12
MISCELLANEOUS
Section 12.1. Trust
Indenture Act Controls.............................................................74
Section 12.2. Notices..................................................................................74
Section 12.3. Communication by Holders with Other Holders..............................................75
Section 12.4. Certificate And Opinion As To Conditions Precedent.......................................75
Section 12.5. Statements Required In Certificate or Opinion............................................76
Section 12.6. Rules by Trustee and Agents..............................................................76
Section 12.7. Legal Holidays...........................................................................76
Section 12.8. No Recourse Against Others...............................................................76
Section 12.9. Governing Law............................................................................77
Section 12.10. No Adverse Interpretation of Other Agreements............................................77
Section 12.11. Successors...............................................................................78
Section 12.12. Severability.............................................................................78
Section 12.13. Counterpart Originals....................................................................78
Section 12.14. Table of Contents, Heading, etc..........................................................78
-iv-
EXECUTION COPY
INDENTURE, dated as of November 1, 2002, among XXXXXXXXX XXXXX
CORPORATION, a Delaware corporation (the "Company"), XXXXX XXXXXX HOLDINGS
CORP., a Delaware corporation ("LS Holdings"), as a Guarantor of the Notes,
XXXXXXXXX XXXXX (CANADA) CORPORATION, a Canadian corporation, ("Xxxxxxxxx
Xxxxx (Canada)") as a Guarantor of the Notes, and BNY MIDWEST TRUST COMPANY,
an Illinois trust company, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the Company's 10%
Secured Subordinated Notes due 2007.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to the Company or a Restricted
Subsidiary, Indebtedness of any other Person existing at the time such other
Person merged with or into the Company or a Restricted Subsidiary or became a
Restricted Subsidiary, other than Indebtedness incurred in connection with, or
in contemplation of, such other Person merging with or into the Company or a
Restricted Subsidiary or becoming a Restricted Subsidiary.
"ADJUSTED CONSOLIDATED NET INCOME" means, with respect to any Person for
any period, the Consolidated Net Income of such Person plus amortization
(including amortization of goodwill, deferred costs and other intangibles) of
such Person for such period to the extent such amortization was deducted in
computing Consolidated Net Income.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
(i) the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; (ii) in the case of a
corporation, beneficial ownership of 10% or more of any class of Capital Stock
of such Person; and (iii) in the case of an individual (A) members of such
Person's immediate family (as defined in Instruction 2 of Item 404(a) of
Regulation S-K under the Securities Act) and (B) trusts, any trustee or
beneficiaries of which are such Person or members of such Person's immediate
family.
"AGENT" means any Registrar or Paying Agent.
"ASSET SALE" means any direct or indirect (i) sale, assignment, transfer,
lease, conveyance, or other disposition (including, without limitation, by way
of merger or consolidation) (collectively, a "transfer"), other than in the
ordinary course of business, of any assets of the Company or its Restricted
Subsidiaries, or (ii) issuance or sale of any
Capital Stock of any Subsidiary (in each case, other than to the Company or a
Wholly Owned Subsidiary). For purposes of this definition, (a) any series of
transfers that are part of a common plan shall be deemed a single Asset Sale and
(b) the term "Asset Sale" shall not include any disposition of all or
substantially all of the assets of the Company that is governed under and
complies with Article 5 of this
Indenture.
"BANKRUPTCY LAW" means title 11, U.S. Code or any similar Federal, state or
foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors or any duly constituted
committee of any corporation or of a corporate general partner of a partnership
and any similar body empowered to direct the affairs of any other entity.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CANADIAN SECURITY AGREEMENTS" means the General Security Agreement, the
Movable Hopothec and the Guarantee and Indemnity, in each case, dated the date
hereof and, in each case, by and among Xxxxxxxxx Xxxxx (Canada) and the Trustee.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be so required to be capitalized on the balance sheet in accordance
with GAAP.
"CAPITAL STOCK" means (i) with respect to any Person that is a corporation,
any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock, and (ii) with respect to any other
Person, any and all partnership interests, membership interests or other indicia
of ownership of such Person.
"CASH EQUIVALENT" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time deposits and
certificates of deposit and commercial paper issued by the parent corporation of
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 and commercial paper issued by others rated at least
A-2 or the equivalent thereof by Standard & Poor's Corporation or at least P-2
or the equivalent thereof by Xxxxx'x Investors Service, Inc. and in each case
maturing within one year after the date of acquisition and (iii) investments in
money market funds substantially all of whose assets comprise securities of the
types described in clauses (i) and (ii) above.
"CHANGE OF CONTROL" means (i) the sale, assignment, lease, transfer or
conveyance (in one transaction or a series of transactions) of all or
substantially all of the Company's assets to any Person or group (as such term
is used in Section 13(d)(3) of the Exchange Act), (ii) the liquidation or
dissolution of the Company or the adoption of a plan by the shareholders of the
Company relating to the dissolution or liquidation of the Company, or (iii) the
acquisition by any Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) of beneficial ownership, directly or indirectly, of Voting
Stock of the Company having the right to elect directors having a majority of
the voting power of the
-2-
Board of Directors of the Company by way of purchase, merger or consolidation or
otherwise, excluding for purposes of this clause (iii) any acquisition of
beneficial ownership of Voting Stock by the Initial Holders or their Affiliates.
"CLOSING DATE" means the date upon which the Notes are first issued.
"COLLATERAL" means any assets of the Company or any of its Subsidiaries
defined as "Collateral" in any of the Security Documents and assets from time to
time in which a Lien exists as security for any of the Obligations under this
Indenture, the Notes or the Guarantees of the Notes.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"COMPANY" means the party named as such above, until a successor replaces
such Person in accordance with the terms of this Indenture, and thereafter means
such successor.
"COMPANY ORDER" means a written request or order signed in the name of the
Company by its Chairman of the Board, President, Chief Executive Officer, Chief
Financial Officer or Senior Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee.
"COMPANY'S STOCK OPTION PLAN" means any equity incentive plan(s) duly
authorized by the Company's Board of Directors for the Company's and its
Subsidiaries' executives, management and employees.
"CONSOLIDATED EBITDA" means, with respect to any Person (the referent
Person) for any period, consolidated income (loss) from operations of such
Person for such period, determined in accordance with GAAP, plus (to the extent
such amounts are deducted in calculating such income (loss) from operations of
such Person for such period, and without duplication) amortization, depreciation
and other non-cash charges (including, without limitation, amortization of
goodwill, deferred financing fees and other intangibles but excluding
(a) non-cash charges incurred after the date of this Indenture that require an
accrual of or a reserve for cash charges for any future period, and (b) normally
recurring accruals such as reserves against accounts receivable); PROVIDED,
HOWEVER, that (i) the income from operations of any Person that is not a Wholly
Owned Subsidiary or that is accounted for by the equity method of accounting
will be included only to the extent of the amount of dividends or distributions
paid during such period to the referent Person or a Wholly Owned Subsidiary of
the referent Person and (ii) the income from operations of any Subsidiary will
not be included to the extent that declarations of dividends or similar
distributions by that Subsidiary are not at the time permitted, directly or
indirectly, by operation of the terms of its organization documents or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its owners.
-3-
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for any
period, the consolidated interest expense of such Person for such period,
whether paid or accrued (including amortization of original issue discount,
non-cash interest payment, and the interest component of Capital Lease
Obligations), to the extent such expense was deducted in computing Consolidated
Net Income of such Person for such period.
"CONSOLIDATED NET INCOME" means, with respect to any Person (the referent
Person) for any period, the aggregate of the Net Income of such Person and its
consolidated subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; PROVIDED, HOWEVER, that (i) the Net Income of any Person
that is not a Wholly Owned Subsidiary or that is accounted for by the equity
method of accounting will be included only to the extent of the amount of
dividends or distributions paid during such period to the referent Person or a
Wholly Owned Subsidiary of the referent Person and (ii) the Net Income of any
Subsidiary will not be included to the extent that declarations of dividends or
similar distributions by that Subsidiary are not at the time permitted, directly
or indirectly, by operation of the terms of its organization documents or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its owners.
"CONSOLIDATED NET WORTH" means, with respect to any Person, the total
shareholders' equity of such Person determined on a consolidated basis in
accordance with GAAP, adjusted to exclude (to the extent included in calculating
such equity), (i) the amount of any such shareholders' equity attributable to
Disqualified Stock or treasury stock of such Person and its consolidated
subsidiaries, and (ii) all upward revaluations and other write-ups in the book
value of any asset of such Person or a consolidated subsidiary of such Person
subsequent to the Issue Date and (iii) all investments in subsidiaries of such
Person that are not Restricted Subsidiaries and in Persons that are not
subsidiaries of such Person.
"CORPORATE TRUST OFFICE" shall be at the address of the Trustee specified
in Section 12.2 or such other address as the Trustee may specify by notice to
the Company.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"DEFAULT" means any event that is, or after notice or the passage of time
or both would be, an Event of Default.
"DEPOSITORY" means the Person specified in Section 2.3 hereof as the
Depository with respect to the Notes issuable in global form, until a successor
shall have been appointed and becomes such pursuant to the applicable provision
of this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"DISQUALIFIED STOCK" means any Equity Interest that, (i) either by its
terms or the terms of any security into which it is convertible or for which it
is exchangeable or otherwise, is or upon the happening of an event or the
passage of time would be, required to be redeemed or repurchased (in whole or in
part) prior to the final stated maturity of
-4-
the Notes or is redeemable (in whole or in part) at the option of the holder
thereof at any time prior to such final stated maturity or (ii) is convertible
into or exchangeable at the option of the issuer thereof or any other Person for
debt securities or Disqualified Stock.
"DTC" means The Depository Trust Company.
"ENVIRONMENTAL ACTIONS" means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other communication from any Governmental
Authority, or any third party involving violations of Environmental Laws or
releases of Hazardous Materials from (a) any assets, properties, or business of
the Company or any Subsidiary or any predecessor in interest, (b) from
properties or businesses adjoining the properties of the Company or any
Subsidiary, or (c) from or onto any facilities which received Hazardous
Materials generated by the Company or any Subsidiary or any predecessor in
interest.
"ENVIRONMENTAL LAW" means any applicable federal, state, provincial,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy, or rule of common
law now or hereafter in effect and in each case as amended, or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on Company or any
Subsidiary relating to the environment, employee health and safety, or Hazardous
Materials, including CERCLA; RCRA; the Federal Water Pollution Control Act, 33
USC Section 1251 et seq; the Toxic Substances Control Act, 15 USC, Section 2601
et seq; the Clean Air Act, 42 USC Section 7401 et seq; the Safe Drinking Water
Act, 42 USC Section 3803 et seq; the Oil Pollution Act of 1990, 33 USC Section
2701 et seq; the Emergency Planning and the Community Right-to-Know Act of 1986,
42 USC Section 11001 et seq; the Hazardous Material Transportation Act, 49 USC
Section 1801 et seq; and the Occupational Safety and Health Act, 29 USC Section
651 et seq. (to the extent it regulates occupational exposure to Hazardous
Materials); and any state and local or foreign counterparts or equivalents, in
each case as amended from time to time.
"ENVIRONMENTAL LIABILITIES AND COSTS" means all liabilities, monetary
obligations, remedial actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts, or consultants, and costs of
investigation and feasibility studies), fines, penalties, sanctions, and
interest incurred as a result of any claim or demand by any Governmental
Authority or any third party, and which relate to any Environmental Action.
"EQUITY INTERESTS" means Capital Stock or warrants, options or other rights
to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
-5-
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
and in the rules and regulations of the Commission, that are in effect on the
Issue Date.
"GOVERNMENTAL AUTHORITY" means any federal, state, local, or other
governmental or administrative body, instrumentality, department, or agency or
any court, tribunal, administrative hearing body, arbitration panel, commission,
or other similar dispute-resolving panel or body.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"GUARANTORS" means all direct or indirect future Restricted Subsidiaries.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" of any Person means (without duplication) (i) all
liabilities and obligations, contingent or otherwise, of such Person (a) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (b) evidenced
by bonds, debentures, notes or other similar instruments, (c) representing the
deferred purchase price of property or services (other than trade payables on
customary terms incurred in the ordinary course of business which are not more
than 90 days past due), (d) created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) as lessee under capitalized leases, (f) under bankers' acceptance
and letter of credit facilities, (g) to purchase, redeem, retire, defease or
otherwise acquire for value any Disqualified Stock, or (h) in respect of Hedging
Obligations, (ii) all liabilities and obligations of others of the type
described in clause (i) that are Guaranteed by such Person, and (iii) all
liabilities and obligations of others of the type described in clause (i) that
are secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness, PROVIDED, HOWEVER, that the amount of such Indebtedness
shall (to the extent such Person has not assumed or become liable for the
payment of such Indebtedness) be the lesser of (x) the fair market value of such
property at the time of determination and (y) the amount of such Indebtedness.
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.
-6-
"INDENTURE" means this Indenture as amended or supplemented from time to
time.
"INITIAL HOLDERS" means the Persons holding the Notes on the Closing Date.
"INTEREST COVERAGE RATIO" means, for any period, the ratio of (i)
Consolidated EBITDA of the Company for such period, over (ii) Consolidated
Interest Expense of the Company for such period. In calculating Interest
Coverage Ratio for any period, pro forma effect shall be given to: (a) the
incurrence, assumption, guarantee, repayment, repurchase, redemption or
retirement by the Company or any of its Subsidiaries of any Indebtedness
subsequent to the commencement of the period for which the Interest Coverage
Ratio is being calculated, as if the same had occurred at the beginning of the
applicable period; and (b) the occurrence of any Asset Sale during such period
by reducing Consolidated EBITDA for such period by an amount equal to the
Consolidated EBITDA (if positive) directly attributable to the assets sold and
by reducing Consolidated Interest Expense by an amount equal to the Consolidated
Interest Expense directly attributable to any Indebtedness secured by the assets
sold and assumed by third parties or repaid with the proceeds of such Asset
Sale, in each case as if the same had occurred at the beginning of the
applicable period. For purposes of making the computation referred to above,
acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including all mergers and consolidations, subsequent to the
commencement of such period shall be calculated on a PRO FORMA basis, assuming
that all such acquisitions, mergers and consolidations had occurred on the first
day of such period. Without limiting the foregoing, the financial information of
the Company with respect to any portion of a period that falls before the Issue
Date shall be adjusted to give pro forma effect to the issuance of the Notes and
the application of the proceeds therefrom as if they had occurred at the
beginning of such period.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans,
Guarantees, advances or capital contributions (excluding (i) commission, travel
and similar advances to officers and employees of such Person made in the
ordinary course of business and (ii) bona fide accounts receivable arising from
the sale of goods or services in the ordinary course of business consistent with
past practice), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, and any other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"ISSUE DATE" means the date upon which the Notes are first issued.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of
New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.
"LIEN" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing
-7-
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).
"MATERIAL ADVERSE CHANGE" means (a) a material adverse change in the
business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of the Company and the Restricted
Subsidiaries taken as a whole, (b) a material impairment of the Company's or any
Guarantor's ability to perform its obligations under the Notes, the Indenture or
the Security Documents, as applicable, or of the Holders' ability to enforce the
Obligations under the Notes, the Indenture or the Guarantees or realize upon the
Collateral
"MATERIAL SUBSIDIARY" means any Subsidiary (a) that is a "Significant
Subsidiary" of the Company as defined in Rule 1-02 of Regulation S-X promulgated
by the Commission or (b) is otherwise material to the business of the Company.
"MORTGAGES" means those certain Mortgages dated the date hereof between the
Company, on the one hand, and the Trustee, on the other, as amended or
supplemented from time to time, with respect to the properties set forth on
Schedule 1.1 hereto.
"NET INCOME" means, with respect to any Person for any period, the net
income (loss) of such Person for such period, determined in accordance with
GAAP, excluding any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with any Asset Sales
and dispositions pursuant to sale and leaseback transactions, and excluding any
extraordinary gain (but not loss), together with any related provision for taxes
on such gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received in respect of any
Asset Sale, net of (i) the reasonable and customary direct out-of-pocket costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions), other than any such costs
payable to an Affiliate of the Company, (ii) amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or assets the
subject of such Asset Sale, (iii) any reserve for adjustment in respect of the
sale price of such asset or asset, (iv) taxes paid or payable as a result
thereof, (v) any relocation expenses and pension, severance and shutdown costs
incurred as a result thereof and (vi) any deduction or appropriate amounts to be
provided by the Company or any of its Subsidiaries as a reserve in accordance
with GAAP against any liabilities associated with the assets disposed of in such
transaction and retained by the Company or any Subsidiary after such sale or
disposition thereof including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters or against any indemnification obligations with respect to such
transaction.
"NOTE DOCUMENTS" means the Indenture, the Notes and the Security Documents.
"NOTES" means the Company's 10% Secured Subordinated Notes due 2007, as
authenticated under this Indenture.
-8-
"OBLIGATIONS" means any principal, interest (including interest paid in
kind and any interest that, but for the provisions of Bankruptcy Law, would have
accrued), penalties, reimbursement obligations, fees (including without
limitation, the Applicable Prepayment Premium (as defined in the Senior Credit
Facility), if applicable, and any fees that, but for the provisions of
Bankruptcy Law, would have accrued), indemnifications, reimbursements, expense
reimbursements (including any expenses that, but for the provisions of
Bankruptcy law, would have accrued), damages and other obligations and
liabilities of the Company under the documentation governing any Indebtedness.
"OFFICERS" means the Chairman of the Board, the President, the Chief
Financial Officer, the Chief Operating Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary, any Assistant Secretary or any Senior
Vice President of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the President, Chief
Executive Officer, Chief Financial Officer, Treasurer, Assistant Treasurer,
Controller or a Senior Vice President of the Company.
"OPINION OF COUNSEL" means an opinion from legal counsel. Such counsel may
be an employee of or counsel to the Company or any Subsidiary of the Company.
"OTHER PERMITTED INDEBTEDNESS" means: (i) Indebtedness in respect of
reimbursement-type obligations regarding workers' compensation claims, (ii)
Indebtedness of the Company and its Restricted Subsidiaries in connection with
performance, surety, statutory, appeal or similar bonds in the ordinary course
of business, (iii) Indebtedness of the Company and its Restricted Subsidiaries
in connection with agreements providing for indemnification, purchase price
adjustments and similar obligations in connection with the sale or disposition
of any of their business, properties or assets, and (iv) the guarantee by the
Company or any of its Restricted Subsidiaries of Indebtedness of the Company or
a Restricted Subsidiary of the Company that was permitted to be incurred under
Section 4.9.
"PERMITTED INVESTMENTS" means (i) Investments in the Company or any Wholly
Owned Subsidiary, (ii) Investments in Cash Equivalents, (iii) Investments in a
Person, if as a result of such Investment (a) such Person becomes a Wholly Owned
Subsidiary and the Capital Stock of such Person is pledged to secure the
Obligations of the Company under the Notes, the Indenture or the Security
Documents, or (b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Subsidiary, and (iv) other
Investments that do not exceed in the aggregate $2 million at any time
outstanding.
"PERMITTED JUNIOR SECURITIES" means (i) Equity Interests in the Company or
any Guarantor; or (ii) debt securities that are subordinated to all Senior Debt
(and any debt securities issued in exchange for Senior Debt) to substantially
the same extent as, or to a greater extent than, the Notes are subordinated to
Senior Debt under this Indenture.
-9-
"PERMITTED LIENS" means (i) Liens in favor of the Company and/or its
Restricted Subsidiaries other than with respect to intercompany Indebtedness,
(ii) Liens on property of a Person existing at the time such Person is acquired
by, merged into or consolidated with the Company or any Restricted Subsidiary,
PROVIDED, HOWEVER, that such Liens were not created in contemplation of such
acquisition and do not extend to assets other than those subject to such Liens
immediately prior to such acquisition, (iii) Liens on property existing at the
time of acquisition thereof by the Company or any Restricted Subsidiary,
PROVIDED, HOWEVER, that such Liens were not created in contemplation of such
acquisition and do not extend to assets other than those subject to such Liens
immediately prior to such acquisition, (iv) Liens incurred in the ordinary
course of business in respect of Hedging Obligations, (v) Liens to secure
Indebtedness for borrowed money of a Subsidiary in favor of the Company or a
Wholly Owned Subsidiary, (vi) Liens (other than pursuant to ERISA or
environmental laws) to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations (exclusive of
obligations constituting Indebtedness) of a like nature incurred in the ordinary
course of business, (vii) Liens existing or created on the Issue Date,
including, without limitation, Liens securing the Notes and Liens securing
Indebtedness under the Senior Credit Facility, (viii) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested or remedied in good faith by appropriate proceedings
promptly instituted and diligently concluded, PROVIDED, HOWEVER, that any
reserve or other appropriate provision as may be required in conformity with
GAAP has been made therefor, (ix) Liens arising by reason of any judgment,
decree or order of any court with respect to which the Company or any of its
Restricted Subsidiaries is then in good faith prosecuting an appeal or other
proceedings for review, the existence of which judgment, order or decree is not
an Event of Default under this Indenture, (x) encumbrances consisting of zoning
restrictions, survey exceptions, utility easements, licenses, rights of way,
easements of ingress or egress over property of the Company or any of its
Restricted Subsidiaries, rights or restrictions of record on the use of real
property, minor defects in title, landlord's and lessor's liens under leases on
property located on the premises rented, mechanics' liens, vendors' liens, and
similar encumbrances, rights or restrictions on personal or real property, in
each case not interfering in any material respect with the ordinary conduct of
the business of the Company or any of its Restricted Subsidiaries, (xi) Liens
incidental to the conduct of business or the ownership of properties incurred in
the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, bids, and government contracts and leases and subleases
and (xii) any extension, renewal, or replacement (or successive extensions,
renewals or replacements), in whole or in part, of Liens described in clauses
(i) through (xi) above.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
-10-
"PUBLIC EQUITY OFFERING" means a bona fide underwritten public offering of
Qualified Stock of the Company, pursuant to a registration statement filed with
and declared effective by the Commission in accordance with the Securities Act.
"PURCHASE MONEY LIENS" means Liens to secure or securing Purchase Money
Obligations permitted to be incurred under this Indenture.
"PURCHASE MONEY OBLIGATIONS" means Indebtedness representing, or incurred
to finance, the cost (i) of acquiring any assets and (ii) of construction or
build-out of manufacturing, distribution or administrative facilities (including
Purchase Money Obligations of any other Person at the time such other Person is
merged with or into or is otherwise acquired by the Company or any Restricted
Subsidiary), PROVIDED, HOWEVER, that (a) the principal amount of such
Indebtedness does not exceed 100% of such cost, including construction charges,
(b) any Lien securing such Indebtedness does not extend to or cover any other
asset or property other than the asset or property being so acquired and (c)
such Indebtedness is incurred, and any Liens with respect thereto are granted,
within 180 days of the acquisition of such property or asset.
"QIB" shall mean "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED STOCK" means, with respect to any Person, Capital Stock of such
Person other than Disqualified Stock.
"REMEDIAL ACTION" means all actions taken to (a) clean up, remove,
remediate, contain, treat, monitor, assess, evaluate, or in any way address
Hazardous Materials in the indoor or outdoor environment, (b) prevent or
minimize a release or threatened release of Hazardous Materials so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment, (c) perform any pre-remedial studies,
investigations, or post- remedial operation and maintenance activities, or (d)
conduct any other actions authorized by 42 USC Section 9601.
"REPRESENTATIVE" means the Agent (as defined in the Senior Credit Facility)
or any other indenture trustee or other trustee, agent or representative for any
Senior Debt.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee located at the
Corporate Trust Office (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SECURITIES" means Notes that are held by "affiliates" as
defined by Rule 144 under the Securities Act. A "Restricted Security" means any
one of such Notes.
"RESTRICTED SUBSIDIARY" means a Subsidiary other than an Unrestricted
Subsidiary.
-11-
"RULE 144A" means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or under any similar rule or regulation hereafter
adopted by the Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENT" means the Security Agreement, dated as of the date
hereof, by and among the Company, the Guarantors and the Trustee, as amended or
supplemented from time to time.
"SECURITY DOCUMENTS" means, collectively, the Security Agreement, the
Mortgages, the Canadian Security Agreements and any other document, instrument
or agreement executed or delivered by the Company or any of its Subsidiaries
from time to time pursuant to which the Company or any such Subsidiary shall
xxxxx x Xxxx on any of their respective properties, assets or revenues to secure
payment of the Obligations hereunder and under the Notes.
"SENIOR CREDIT FACILITY" means the Loan and Security Agreement and Guaranty
entered into on the Closing Date among the lenders from time to time parties
thereto, Foothill Capital Corporation, as arranger and administrative agent for
such lenders, and the Company, as borrower and LS Holdings and Xxxxxxxxx Xxxxx
(Canada), as guarantors, as the same may be amended, modified, renewed,
refunded, replaced or refinanced from time to time, including (i) any related
notes, letters of credit, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time, and
(ii) any notes, guarantees, collateral documents, instruments and agreements
executed in connection with such amendment, modification, renewal, refunding,
replacement or refinancing; provided, that no such amendment, modification,
renewal, refund, replacement or refinancing shall cause the principal amount of
Indebtedness permitted to be incurred under such facility to exceed $55 million.
"SENIOR DEBT" means all Obligations of the Company or any Guarantor
outstanding under the Senior Credit Facility.
"SENIOR DEBT DOCUMENTS" means the Senior Credit Facility and any
instruments, agreements and documents executed pursuant thereto or in connection
therewith, including the related security documents.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Voting Stock thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other subsidiaries
of that Person or a combination thereof and (ii) any partnership in which such
Person or any of its subsidiaries is a general partner.
"SUBSIDIARY" means any subsidiary of the Company.
-12-
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date hereof until such time as
this Indenture is qualified under the TIA, and thereafter as in effect on the
date on which this Indenture is qualified under the TIA.
"TRANSFER" means any direct or indirect sale, assignment, transfer, lease,
conveyance, or other disposition (including, without limitation, by way of
merger or consolidation).
"TRUSTEE" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary that has been designated by
the Company (by written notice to the Trustee as provided below) as an
Unrestricted Subsidiary; provided, that a Subsidiary may not be designated as an
"Unrestricted Subsidiary" unless (a) such Subsidiary does not own any Capital
Stock of, or own or hold any Lien on any property of, the Company or any
Restricted Subsidiary (other than such Subsidiary), (b) neither immediately
prior thereto nor after giving pro forma effect to such designation, would there
exist a Default or Event of Default, (c) immediately after giving effect to such
designation on a pro forma basis, the Company could incur at least $1.00 of
Indebtedness pursuant to the Interest Coverage Ratio test set forth in the
covenant described under Section 4.9(a) hereof and (d) the creditors of such
Subsidiary have no direct or indirect recourse (including, without limitation,
recourse with respect to the payment of principal or interest on Indebtedness of
such Subsidiary) to the assets of the Company or of a Restricted Subsidiary
(other than such Subsidiary). The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if
(i) no Default or Event of Default is existing or will occur as a consequence
thereof; and (ii) immediately after giving effect to such designation, on a pro
forma basis, the Company could incur at least $1.00 of Indebtedness pursuant to
the Interest Coverage Ratio test set forth in Section 4.9(a) hereof. Each such
designation shall be evidenced by filing with the Trustee a certified copy of
the board resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions. The Company shall be deemed to make an Investment in each Subsidiary
designated as an "Unrestricted Subsidiary" immediately following such
designation in an amount equal to the Investment in such Subsidiary and its
subsidiaries immediately prior to such designation; provided, that if such
Subsidiary is subsequently redesignated as a Restricted Subsidiary, the amount
of such Investment shall be deemed to be reduced (but not below zero) by the
fair market value of the net consolidated assets of such Subsidiary on the date
of such redesignation.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of the United States
of America, or any agency or instrumentality thereof for the payment of which
the full faith and credit of the United States of America is pledged.
"VOTING STOCK" means, with respect to any Person, (i) one or more classes
of the Capital Stock of such Person having general voting power to elect at
least a majority of
-13-
the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes have or
might have voting power by reason of the happening of any contingency) and
(ii) any Capital Stock of such Person convertible or exchangeable without
restriction at the option of the holder thereof into Capital Stock of such
Person described in clause (i) above.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness
at any date, the number of years (rounded to the nearest one-twelfth) obtained
by dividing (i) the then outstanding principal amount of such Indebtedness into
(ii) the total of the product obtained by multiplying (x) the amount of each
then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof,
by (y) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment.
"WHOLLY OWNED SUBSIDIARY" means a Restricted Subsidiary all the Capital
Stock of which (other than directors' qualifying shares) is owned by the Company
or one or more Wholly Owned Subsidiaries.
SECTION 1.2. OTHER DEFINITIONS.
Term Defined in Section
---- ------------------
"Affiliate Transaction"................................4.11
"Change of Control Offer"..............................4.14
"Change of Control Payment.............................4.14
"Change of Control Payment Date".......................4.14
"Co-Trustee"...........................................7.13
"Definitive Notes".....................................2.1
"Event of Default".....................................6.1
"Excess Proceeds"......................................4.10
"Excess Proceeds Offer"................................4.10
"Excess Proceeds Offer Period".........................4.10
"Excess Proceeds Payment Date".........................4.10
"Global Note"..........................................2.1
"Guaranty".............................................10.7
"Hedging Obligations...................................4.9(b)(iii)
"Paying Agent".........................................2.3
"PIK Note(s)"..........................................2.15
"Purchase Amount"......................................4.10
"Purchase Money Indebtedness"..........................4.9(b)(iv)
"Refinance"............................................4.9(b)(viii)
"Refinancing Indebtedness".............................4.9(b)(viii)
"Registrar"............................................2.3
"Restricted Payments"..................................4.7(a)
"Six Month Period".....................................10.4
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
-14-
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company, the Guarantors and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
SECTION 2.1. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A attached hereto, the terms of which are
incorporated in and made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issued in denominations of $1 and integral
multiples thereof.
-15-
The Notes will be issued (i) in global form (the "GLOBAL NOTE"),
substantially in the form of Exhibit A attached hereto (including the text
referred to in footnotes 1 and 2 thereto) and (ii) in definitive form (the
"DEFINITIVE NOTES"), substantially in the form of Exhibit A attached hereto
(excluding the text referred to in footnotes 1 and 2 thereto). The Global Note
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon; PROVIDED, that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of the Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or facsimile
signature. If an Officer whose signature is on a Note no longer holds that
office at the time the Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A attached hereto.
The Trustee shall, upon a Company Order, authenticate for original issue up
to $50,000,000 aggregate principal amount of the Notes. The aggregate principal
amount of Notes outstanding at any time may not exceed $50,000,000 except as
provided in Section 2.7 or 2.14 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authenticating by the Trustee includes
authenticating by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payment of principal of and (subject to the
provisions of this Indenture and the Notes with respect to record dates)
interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.3. REGISTRAR, PAYING AGENT AND DEPOSITORY.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and (ii) an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Company
-16-
initially appoints the Trustee as Registrar and Paying Agent. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee of the name and address of any Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar, except that for purposes of Articles Three and
Eight and Sections 4.1, 4.10 and 4.14 neither the Company nor any of its
Subsidiaries shall act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent.
The Company initially appoints DTC to act as Depository with respect to the
Global Notes. The Trustee shall act as custodian for the Depository with respect
to the Global Notes.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the Company) shall
have no further liability for the money delivered to the Trustee. If the Company
or a Subsidiary of the Company acts as Paying Agent (subject to Section 2.3), it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
SECTION 2.5. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders,
including the aggregate principal amount thereof, and the Company shall
otherwise comply with TIA Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
-17-
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes are
presented by a Holder to the Registrar with a request (1) to register the
transfer of the Definitive Notes or (2) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; PROVIDED, that the Definitive
Notes so presented have been duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing; and (B) in the case
of a Restricted Security, such request shall be accompanied by the following
additional documents:
(i) if such Restricted Security is being delivered to the Registrar
by a Holder for registration in the name of such Holder, without transfer,
a certification to that effect (in substantially the form of Exhibit B
attached hereto); or
(ii) if such Restricted Security is being transferred to a QIB in
accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto);
(iii) if such Restricted Security is being transferred to an accredited
"institutional investor," as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, a transferee letter of representations in form
and substance reasonably acceptable to the Company and the Registrar; or
(iv) if such Restricted Security is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that effect (in substantially the form of Exhibit B
attached hereto) and an opinion of counsel reasonably acceptable to the
Company and the Registrar to the effect that such transfer is in compliance
with the Securities Act.
(b) TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN A GLOBAL
NOTE. A Definitive Note may be exchanged for a beneficial interest in a Global
Note only upon receipt by the Trustee of a Definitive Note, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with:
(i) written instructions directing the Trustee to make an endorsement
on the Global Note to reflect an increase in the aggregate principal amount
of the Notes represented by the Global Note; and
(ii) if such Definitive Note is a Restricted Security, a certification
(in substantially the form of Exhibit B attached hereto) to the effect that
such Definitive Note is being transferred to a QIB in accordance with Rule
144A;
in which case the Trustee shall cancel such Definitive Note and cause the
aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Note is then outstanding, the Company
shall
-18-
issue and the Trustee shall authenticate a new Global Note in the
appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depository in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A DEFINITIVE
NOTE. Upon receipt by the Trustee of written transfer instructions (or such
other form of instructions as is customary for the Depository), from the
Depository (or its nominee) on behalf of any Person having a beneficial interest
in a Global Note, the Trustee shall, in accordance with the standing
instructions and procedures existing between the Depository and the Trustee,
cause the aggregate principal amount of Global Notes to be reduced accordingly
and, following such reduction, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the transferee a Definitive Note
in the appropriate principal amount; PROVIDED, that in the case of a Restricted
Security, such instructions shall be accompanied by the following additional
documents:
(i) if such beneficial interest is being transferred to the Person
designated by the Depository as being the beneficial owner, a certification
to that effect (in substantially the form of Exhibit B attached hereto); or
(ii) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto);
(iii) if such Restricted Security is being transferred to an accredited
"institutional investor," as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, a transferee letter of representations in form
and substance reasonably acceptable to the Company and the Registrar; or
(iv) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that effect (in substantially the form of Exhibit B
attached hereto) and an opinion of counsel reasonably acceptable to the
Company and to the Registrar to the effect that such transfer is in
compliance with the Securities Act.
Definitive Notes issued in exchange for a beneficial interest in a
Global Note shall be registered in such names and in such authorized
denominations as the Depository shall instruct the Trustee.
(e) TRANSFER AND EXCHANGE OF GLOBAL NOTES. Notwithstanding any other
provision of this Indenture, the Global Note may not be transferred as a whole
except by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such
-19-
nominee to a successor Depository or a nominee of such successor Depository;
PROVIDED, that if:
(i) the Depository notifies the Company that the Depository is
unwilling or unable to continue as Depository and a successor Xxxxxxxxxx is
not appointed by the Company within 90 days after delivery of such notice;
or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under this
Indenture,
then the Company shall execute and the Trustee shall authenticate and make
available for delivery, Definitive Notes in an aggregate principal amount equal
to the aggregate principal amount of the Global Note in exchange for such Global
Note.
(f) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in the Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the Global Note shall be
returned to or retained and cancelled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in the Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the aggregate principal
amount of Notes represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note by the Trustee to reflect such
reduction.
(g) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Definitive Notes and Global Notes at the Registrar's
request. All Definitive Notes and Global Notes issued upon any registration of
transfer or exchange of Definitive Notes or Global Notes shall be legal, valid
and binding obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Definitive Notes or Global
Notes surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange (without transfer to another Person) pursuant to
Sections 2.10, 3.7, 4.10, 4.14 and 9.5 of this Indenture).
The Company shall not be required to (i) issue, register the transfer of or
exchange Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.2 hereof
and ending at the close of business on the day of selection; or (ii) register
the transfer of or exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part; or (iii)
register the transfer of or exchange a Note between a record date and the next
succeeding interest payment date.
-20-
Prior to due presentment for the registration of a transfer of any Note,
the Trustee, any Agent and the Company may deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note for all purposes,
and neither the Trustee, any Agent nor the Company shall be affected by notice
to the contrary.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee shall authenticate a
replacement Note if the Trustee's requirements for replacements of Notes are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company and the Trustee may charge for their respective expenses in replacing a
Note.
Every replacement Note is an obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding.
If a Note is replaced pursuant to Section 2.7 hereof, the replaced Note
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.9 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Affiliate of the Company (other than Notes owned by any Initial
Holders or their Affiliates, which shall be considered outstanding for such
purposes) shall be considered as though not outstanding, except that for
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows to be so owned shall be considered as not outstanding.
-21-
SECTION 2.10. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company (and the
Guarantors, if any) may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Company (and the Guarantors, if any)
shall cause definitive Notes to be prepared without unreasonable delay. The
definitive Notes shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any principal national securities exchange, if any, on which the
Notes are listed, all as determined by the Officers executing such definitive
Notes. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency maintained by the Company for such purpose pursuant to Section
4.2 hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Notes, the Company (and the Guarantors, if any), shall
execute, and the Trustee shall authenticate and make available for delivery, in
exchange therefor the same aggregate principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
such cancelled Notes in its customary manner. The Company may not issue new
Notes to replace Notes that have been redeemed or paid or that have been
delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five Business Days prior to the payment date, in
each case at the rate provided in the Notes and in Section 4.1hereof. The
Company shall, with the consent of the Trustee, fix or cause to be fixed each
such special record date and payment date. At least 15 days before the special
record date, the Company (or the Trustee, in the name of and at the expense of
the
-22-
Company) shall mail to the Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
SECTION 2.13. LEGENDS.
(a) Each Restricted Security shall bear legends relating to restrictions
on transfer pursuant to the securities laws in substantially the form set forth
on Exhibit A attached hereto.
(b) Upon any sale or transfer of a Restricted Security (including any
Restricted Security represented by a Global Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective registration statement under the
Securities Act:
(i) in the case of any Restricted Security that is a Definitive Note,
the Registrar shall permit the Holder thereof to exchange such Restricted
Security for a Definitive Note that does not bear the legends required by
subsection (a) above; and
(ii) in the case of any Restricted Security represented by a Global
Note, such Restricted Security shall not be required to bear the legends
required by subsection (a) above, but shall continue to be subject to the
provisions of Section 2.6(c) hereof, PROVIDED, that with respect to any
request for an exchange of a Restricted Security that is represented by a
Global Note for a Definitive Note that does not bear the legends required
by subsection (a) above, which request is made in reliance upon Rule 144,
the Holder thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144.
SECTION 2.14. ELECTION TO PAY INTEREST IN KIND.
With respect to any payment of interest due under the Notes that occurs on
or prior to the third anniversary of the Closing Date, the Company may elect, in
the judgment of its Board of Directors, to make all or a portion of such
interest payment on all of the Notes in cash or by issuing to the Holders of
such Notes new promissory notes (each a "PIK Note" and collectively, the "PIK
Notes") in the form attached hereto as Exhibit A with a principal amount, in
each case, equal to the amount of interest (rounded to the nearest dollar and
rounded up if at the mid-point between two dollar amounts) that the Holder of
such Note was due on the interest payment date and which the Company has elected
to pay by issuance of the PIK Note. If the Company desires to make such interest
payment by issuance of PIK Notes, the Company shall mail a written notice by
first class mail to the Trustee and to each Holder of Notes at such Holder's
registered address at least 15 days (by facsimile with original to follow) but
no more than 60 days prior to the date when such interest is scheduled to be
paid under the terms of the Notes. If the Company fails to mail such a notice
within the time periods specified in the prior sentence, then such interest
payment must be made in its entirety to each Holder of the Notes in PIK Notes.
Upon issuance of a PIK Note, such PIK Note shall be subject to the terms of this
Indenture and shall be treated as a "Note" hereunder.
SECTION 2.15. CUSIP NUMBERS.
-23-
The Company in issuing the Notes may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION
SECTION 3.1. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.7 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the redemption date, (ii) the principal amount of
Notes to be redeemed and (iii) the redemption price.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the Trustee shall select the
Notes to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed, or, if the
Notes are not so listed, PRO RATA, by lot or by such method as the Trustee deems
to be appropriate.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1 or whole multiples of $1. Provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
SECTION 3.3. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first class mail to each Holder
whose Notes are to be redeemed at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part only, the portion of
the principal amount of such Note to be redeemed and that, after the
-24-
redemption date, upon cancellation of the original Note, a new Note or
Notes in principal amount equal to the unredeemed portion shall be
issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes or portions of Notes called for redemption
ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or the section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) the CUSIP number of the Notes to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the name of the Company and at its expense; PROVIDED that the Company shall
deliver to the Trustee, at least 45 days (unless a shorter period is acceptable
to the Trustee) prior to the redemption date, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption has been mailed to the Holders in accordance with
Section 3.3 herein, Notes called for redemption become due and payable on the
redemption date at the redemption price. At any time prior to the mailing of a
notice of redemption to the Holders pursuant to Section 3.3, the Company may
withdraw, revoke or rescind any notice of redemption delivered to the Trustee
without any continuing obligation to redeem the Notes as contemplated by such
notice of redemption.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m. on the redemption date, the Company shall deposit
with the Trustee (to the extent not already held by the Trustee) or with the
Paying Agent money in immediately available funds sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
Interest on the Notes to be redeemed shall cease to accrue on the
applicable redemption date, whether or not such Notes are presented for payment,
if the Company makes or deposits the redemption payment in accordance with this
Section 3.5. If any Note called for redemption shall not be paid upon surrender
for redemption because of
-25-
the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes.
SECTION 3.6. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.7. OPTIONAL REDEMPTION.
At any time following the Issue Date and in accordance with the procedures
established by this Article 3, the Company may, at its option, redeem the Notes,
in whole or in part, by paying to the holders thereof the outstanding principal
amount of the Notes to be redeemed, plus accrued and unpaid interest on such
Notes. Nothing in this Section 3.7 shall limit the Company's right to make open
market purchases of the Notes at any time.
ARTICLE 4
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Company shall pay the principal and premium, if any, of, and interest
on, the Notes on the dates and in the manner provided in the Notes. Principal,
premium, if any, and interest shall be considered paid on the date due if the
Paying Agent, other than the Company or a Subsidiary of the Company, holds on or
before that date money deposited by the Company in immediately available funds
and designated for and sufficient to pay all principal, premium, if any, and
interest then due. Such Paying Agent shall return to the Company, no later than
three Business Days following the date of payment, any money that exceeds such
amount of principal, premium, if any, and interest then due and payable on the
Notes.
The Company shall pay interest (including post-petition interest) on
overdue installments of interest (without regard to any applicable grace period)
at the rate specified in the Notes to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency (which may be an office of
the Trustee, Registrar or co-registrar) in the Borough of Manhattan, the City of
New York where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish
-26-
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; PROVIDED, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.3.
SECTION 4.3. REPORTS.
If the Company is required to furnish annual, quarterly or current reports
pursuant to the Exchange Act, the Company shall cause any annual, quarterly,
current or other financial report furnished by it generally to its stockholders
to be filed with the Trustee and mailed to the Holders at their addresses
appearing in the register of Notes maintained by the Registrar. If the Company
is not required to furnish annual, quarterly or current reports pursuant to the
Exchange Act, the Company shall cause the financial statements of the Company
and its consolidated Subsidiaries (and similar financial statements for all
unconsolidated Subsidiaries, if any), including any notes thereto (and, with
respect to annual reports, an auditors' report by an accounting firm of
established national reputation), and a "Management's Discussion and Analysis of
Financial Condition and Results of Operations," comparable to that which would
have been required to appear in annual or quarterly reports filed under Section
13 or 15(d) of the Exchange Act, and current reports containing information
which the Company would have been required to file on Form 8-K, to be so filed
with the Trustee and mailed to the Holders promptly, but in any event, within 90
days after the end of each of the fiscal years of the Company for annual reports
and within 45 days after the end of each of the first three quarters of each
such fiscal year for quarterly reports. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.4. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate (PROVIDED, that one of the
signatories to such Officers' Certificate shall be the Company's principal
executive officer, principal financial officer or principal accounting officer)
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determine whether each has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that, to such
Officer's knowledge, each of the Company and its Subsidiaries has kept,
-27-
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred and is continuing, describing all such Defaults or Events of
Default of which he may have knowledge and what action each is taking or
proposes to take with respect thereto).
(b) The year-end financial statements delivered pursuant to Section 4.3
above shall be accompanied by a written statement of the independent public
accountants of the Company (which shall be a firm of established national
reputation reasonably satisfactory to the Trustee) that in making the
examination necessary for certification of such financial statements nothing has
come to their attention which would lead them to believe that either the Company
or any of its Subsidiaries has violated any provisions of this Indenture or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) So long as any of the Notes are outstanding, the Company shall deliver
to the Trustee forthwith upon any Officer becoming aware of (i) any Default or
Event of Default or (ii) any event of default under any mortgage, indenture or
instrument referred to in Section 6.1(5) hereof, an Officers' Certificate
specifying such Default, Event of Default or other event of default and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.5. TAXES.
The Company shall, and shall cause its Subsidiaries to, file all tax
returns required to be filed and to pay prior to delinquency all material taxes,
assessments and governmental levies except as contested in good faith and by
appropriate proceedings and for which reserves have been established if required
by GAAP.
SECTION 4.6. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury 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 (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it shall not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee but shall suffer
and permit the execution of every such power as though no such law has been
enacted.
SECTION 4.7. LIMITATION ON RESTRICTED PAYMENTS.
-28-
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on account
of any Equity Interests of the Company or any of its Subsidiaries (other
than (x) dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or (y) dividends or distributions
payable to the Company or any Wholly Owned Subsidiary),
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interest of the Company, any Subsidiary or any other Affiliate of
the Company,
(iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of the Company or
any Guarantor that is subordinated in right of payment to the Notes or such
Subsidiary's Guarantee thereof, as the case may be, prior to any scheduled
principal payment, sinking fund payment or other payment at the stated
maturity thereof, or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS") unless, at the time of
such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence thereof, and
(2) immediately after such Restricted Payment and after giving
effect thereto on a PRO FORMA basis, the Company could incur at least
$1.00 of additional Indebtedness under Section 4.9(a) hereof, and
(3) such Restricted Payment (the value of any such payment, if
other than cash, being determined in good faith by the Board of
Directors of the Company and evidenced by a resolution set forth in an
Officers' Certificate delivered to the Trustee), together with the
aggregate of all other Restricted Payments made after the date of this
Indenture (including Restricted Payments permitted by clauses (i) and
(ii) of Section 4.7(b) and excluding Restricted Payments permitted by
the other clauses therein), is less than the sum of (w) 50% of the
Adjusted Consolidated Net Income of the Company for the period (taken
as one accounting period) from the beginning of the first quarter
commencing immediately after the Issue Date to the end of the
Company's most recently ended full fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Adjusted Consolidated Net Income for such period
is a deficit, 100% of such deficit), plus (x) $1.0 million, plus (y)
100% of the aggregate net cash proceeds received by the Company
-29-
from the issuance or sale, other than to a Subsidiary, of Equity
Interests of the Company (other than Disqualified Stock) after the
Issue Date and on or prior to the time of such Restricted Payment,
plus (z) 100% of the aggregate net cash proceeds received by the
Company from the issuance or sale, other than to a Subsidiary, of any
convertible or exchangeable debt security of the Company that has been
converted or exchanged into Equity Interests of the Company (other
than Disqualified Stock) pursuant to the terms thereof after the date
of this Indenture and on or prior to the time of such Restricted
Payment (including any additional net cash proceeds received by the
Company upon such conversion or exchange).
(b) The provisions of subsection (a) above shall not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would not
have been prohibited by the provisions of this Indenture,
(ii) the redemption, purchase, retirement or other acquisition of any
Equity Interests of the Company in exchange for, or out of the net cash
proceeds of, the substantially concurrent sale (other than to a Subsidiary
of the Company) of other Equity Interests of the Company (other than
Disqualified Stock),
(iii) the redemption, repurchase or payoff of any Indebtedness with
proceeds of any Refinancing Indebtedness permitted to be incurred pursuant
to the provisions of Section 4.9(b)(viii) hereof, and
(iv) the repurchase, redemption, retirement or acquisition of Equity
Interests of the Company from executives, management or employees of the
Company pursuant to the Company's Stock Option Plan;
PROVIDED, that with respect to clauses (i) through (iv) above, no Default in the
payment when due of interest on the Notes or Event of Default described in
Section 6.1(2) and (3) hereof shall have occurred and be continuing at the time,
or shall occur as a consequence thereof.
SECTION 4.8. LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary
(a) to (i) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries (A) on such Restricted Subsidiary's Capital
Stock or (B) with respect to any other interest or participation in, or measured
by, such Restricted Subsidiary's profits or (ii) pay any indebtedness owed to
the Company or any of its Restricted Subsidiaries, or
-30-
(b) to make loans or advances to the Company or any of its Restricted
Subsidiaries, or
(c) to transfer any of its assets to the Company or any of its Restricted
Subsidiaries, except, with respect to any of clauses (a), (b) or (c), for such
encumbrances or restrictions existing under or by reason of:
(i) this Indenture, the Security Documents and the Notes,
(ii) applicable law,
(iii) any Acquired Debt, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired and
(iv) permitted Refinancing Indebtedness, provided, however, that such
restrictions contained in any agreement governing such Refinancing
Indebtedness are no more restrictive than those contained in any agreements
governing the Indebtedness being refinanced.
SECTION 4.9. LIMITATION ON INCURRENCE OF INDEBTEDNESS.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) create, incur, issue, assume,
guaranty or otherwise become directly or indirectly liable with respect to,
contingently or otherwise (collectively, "incur"), any Indebtedness (including
Acquired Debt) or (ii) issue any Disqualified Stock; PROVIDED, HOWEVER, that the
Company may incur Indebtedness or issue shares of Disqualified Stock and any
Restricted Subsidiary may incur Acquired Debt, in each case if (w) no Default or
Event of Default shall have occurred and be continuing at the time of, or would
occur after giving effect on a PRO FORMA basis to such incurrence or issuance,
(x) the Company has made the then most recent payment of interest due under the
Notes entirely in cash and without issuing any PIK Notes, and (y) the Interest
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified
Stock is issued would have been at least equal to the ratio set forth below
opposite the period in which such incurrence or issuance occurs, determined on a
PRO FORMA basis (including a PRO FORMA application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period:
PERIOD ENDING RATIO
------------- -----
November 1, 2007................................. 2.25x
and (z) in the case of Indebtedness the Weighted Average Life to Maturity and
final scheduled maturity of such Indebtedness exceeds the remaining Weighted
Average Life to Maturity and final stated maturity of the Notes.
-31-
(b) The limitations of Section 4.9(a) shall not prohibit the incurrence
of:
(i) Indebtedness and other Obligations under the Senior Credit
Facility and reimbursement obligations in respect of letters of credit,
PROVIDED, that the aggregate principal amount of such Indebtedness so
incurred on any date, together with all other Indebtedness incurred
pursuant to this clause (i) and outstanding on such date, shall not exceed
$55 million,
(ii) performance bonds, appeal bonds, surety bonds, insurance
obligations or bonds and other similar bonds or obligations incurred in the
ordinary course of business,
(iii) Obligations incurred to fix the interest rate on any variable
rate Indebtedness otherwise permitted by this Indenture ("Hedging
Obligations"),
(iv) Indebtedness arising out of sale and leaseback transactions,
capital lease obligations or Purchase Money Obligations (collectively,
"Purchase Money Indebtedness") in an aggregate amount not to exceed $1.5
million outstanding at any time,
(v) Indebtedness owed by the Company to any Wholly Owned Subsidiary
or by any Wholly Owned Subsidiary to the Company or any other Wholly Owned
Subsidiary,
(vi) Indebtedness outstanding on the Issue Date, including the Notes,
(vii) Other Permitted Indebtedness, and
(viii) Indebtedness issued in exchange for, or the proceeds of which
are contemporaneously used to extend, refinance, renew, replace, or refund
(collectively, "Refinance") Indebtedness referred to in clauses (iv) and
(vi) of this Section 4.9(b) and outstanding Indebtedness incurred pursuant
to the Interest Coverage Ratio test set forth in Section 4.9(a) hereof
("REFINANCING INDEBTEDNESS"); PROVIDED, that (A) the principal amount of
such Refinancing Indebtedness does not exceed the principal amount of
Indebtedness so Refinanced, (B) the Refinancing Indebtedness has a final
scheduled maturity that exceeds the final stated maturity, and a Weighted
Average Life to Maturity that is equal to or greater than the Weighted
Average Life to Maturity, of the Indebtedness being Refinanced, and (C) the
Refinancing Indebtedness ranks, in right of payment, no more favorable to
the Notes than the Indebtedness being Refinanced.
SECTION 4.10. LIMITATION ON ASSET SALES.
The Company shall not, and shall not permit any Restricted Subsidiary to,
make any Asset Sale unless (i) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value (as determined in good faith by the Board of Directors of the
Company as evidenced by a
-32-
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets subject to such Asset Sale, (ii) at
least 85% of the consideration for such Asset Sale is in the form of cash, Cash
Equivalents or liabilities of the Company or any Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the Notes or any
Guarantee of the Notes) that are assumed by the transferee of such assets
(PROVIDED, that following such Asset Sale there is no further recourse to the
Company and its Restricted Subsidiaries with respect to such assets), and (iii)
within 12 months of such Asset Sale, the Net Proceeds thereof are (a) invested
in assets related to the business of the Company or its Restricted Subsidiaries
as conducted on the Issue Date, (b) used to permanently reduce any Indebtedness
which ranks senior to or pari passu with the Notes (PROVIDED in the case of a
revolver or similar arrangement that makes credit available, such commitment is
also permanently reduced) or (c) to the extent not used as provided in clause
(a) or (b), applied to make an offer to purchase Notes as described below (an
"Excess Proceeds Offer"); PROVIDED, that if the amount of Net Proceeds from any
Asset Sale not invested pursuant to clause (a) above or used to repay
Indebtedness pursuant to clause (b) above is less than $2.0 million, the Company
shall not be required to make an offer pursuant to clause (c).
The amount of Net Proceeds not invested or applied as set forth in the
preceding clause (a) or (b) constitutes "Excess Proceeds." If the Company
elects, or becomes obligated to make an Excess Proceeds Offer, the Company shall
offer to purchase Notes having an aggregate principal amount equal to the Excess
Proceeds (the "Purchase Amount"), at a purchase price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest, if any, to
the purchase date. The Company must commence such Excess Proceeds Offer not
later than 30 days after the expiration of the 12-month period following the
Asset Sale that produced Excess Proceeds. If the aggregate purchase price for
the Notes tendered pursuant to the Excess Proceeds Offer is less than the Excess
Proceeds, the Company and its Restricted Subsidiaries may use the portion of the
Excess Proceeds remaining after payment of such purchase price for general
corporate purposes.
Each Excess Proceeds Offer shall remain open for a period of 20 Business
Days and no longer, unless a longer period is required by law (the "Excess
Proceeds Offer Period"). Promptly after the termination of the Excess Proceeds
Offer Period (the "EXCESS PROCEEDS PAYMENT DATE"), the Company shall purchase
and mail or deliver payment for the Purchase Amount for the Notes or portions
thereof tendered, PRO RATA or by such other method as may be required by law,
or, if less than the Purchase Amount has been tendered, all Notes tendered
pursuant to the Excess Proceeds Offer. The principal amount of Notes to be
purchased pursuant to an Excess Proceeds Offer may be reduced by the principal
amount of Notes acquired by the Company through purchase or redemption (other
than pursuant to a Change of Control Offer) subsequent to the date of the Asset
Sale and surrendered to the Trustee for cancellation.
Each Excess Proceeds Offer shall be conducted in compliance with all
applicable laws, including without limitation, Regulation 14E of the Exchange
Act and all other applicable Federal and state securities laws. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.10, the
-33-
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.10 by
virtue thereof. The Company shall not, and shall not permit any of its
Subsidiaries to, create or suffer to exist or become effective any restriction
that would impair the ability of the Company to make an Excess Proceeds Offer
upon an Asset Sale or, if such Excess Proceeds Offer is made, to pay for the
Notes tendered for purchase.
The Company shall, no later than 30 days following the expiration of the
12-month period following the Asset Sale that produced Excess Proceeds, commence
the Excess Proceeds Offer by mailing to the Trustee and each Holder, at such
Holder's last registered address, a notice, which shall govern the terms of the
Excess Proceeds Offer, and shall state:
(1) that the Excess Proceeds Offer is being made pursuant to
this Section 4.10, the principal amount of Notes which shall be
accepted for payment and that all Notes validly tendered shall be
accepted for payment on a PRO RATA basis;
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for payment pursuant
to the Excess Proceeds Offer shall continue to accrue interest;
(4) that, unless the Company defaults in the payment of the
purchase price with respect to any Notes tendered, Notes accepted for
payment pursuant to the Excess Proceeds Offer shall cease to accrue
interest after the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant to an
Excess Proceeds Offer shall be required to surrender their Notes, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Company prior to the close of business
on the third Business Day immediately preceding the Excess Proceeds
Payment Date;
(6) that Holders shall be entitled to withdraw their election if
the Company receives, not later than the close of business on the
second Business Day preceding the Excess Proceeds Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes the Holder delivered
for purchase and a statement that such Xxxxxx is withdrawing his
election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part shall be
issued Notes representing the unpurchased portion of the Notes
surrendered; PROVIDED that each Note purchased and each new Note
issued shall be in principal amount of $1 or whole multiples thereof;
and
-34-
(8) the instructions that Holders must follow in order to tender
their Notes.
On or before the Excess Proceeds Payment Date, the Company shall (i) accept
for payment on a PRO RATA basis the Notes or portions thereof tendered pursuant
to the Excess Proceeds Offer, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted and (iii) deliver to the Trustee the Notes so accepted, together with
an Officers' Certificate stating that the Notes or portions thereof tendered to
the Company are accepted for payment. The Paying Agent shall promptly mail to
each Holder of Notes so accepted payment in an amount equal to the purchase
price of such Notes, and the Trustee shall promptly authenticate and mail to
such Holders new Notes equal in principal amount to any unpurchased portion of
the Note surrendered.
The Company shall make a public announcement of the results of the Excess
Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date.
For the purposes of this Section 4.10, the Trustee shall act as the Paying
Agent.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into any contract, agreement, understanding, loan, advance
or guarantee with, or for the benefit of, any Affiliate (each of the foregoing,
an "Affiliate Transaction"), except for (i) Affiliate Transactions, which
together with all Affiliate Transactions that are part of a common plan, have an
aggregate value of not more than $1.0 million; PROVIDED, that such transactions
are conducted in good faith and on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of the Company or such Restricted Subsidiary,
(ii) Affiliate Transactions, which together with all Affiliate Transactions that
are part of a common plan, have an aggregate value of not more than $2.0
million; PROVIDED, that a majority of the disinterested members of the Board of
Directors of the Company determine that such transactions are conducted in good
faith and on terms that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained in a comparable
transaction at such time on an arm's-length basis from a Person that is not an
Affiliate of the Company or such Restricted Subsidiary and (iii) Affiliate
Transactions for which the Company delivers to the Trustee an opinion as to the
fairness to the Company or such Restricted Subsidiary from a financial point of
view, issued by an investment banking firm of national standing; PROVIDED,
HOWEVER, that the following will not be deemed to be Affiliate Transactions: (i)
employment or consulting agreements entered into by the Company or any
Restricted Subsidiary in the ordinary course of business with the approval of
the disinterested members of the Company's Board of Directors, (ii) transactions
between or among the Company and/or its Wholly Owned Subsidiaries or Guarantors,
(iii) transactions permitted by the provisions described in Section 4.7 hereof
-35-
and (iv) reasonable and customary directors' fees for non-management members of
the Board of Directors of the Company or any Restricted Subsidiary.
SECTION 4.12. LIMITATION ON LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien on any
asset (including, without limitation, all real, tangible or intangible property)
of the Company or any Restricted Subsidiary, whether now owned or hereafter
acquired, or on any income or profits therefrom, or assign or convey any right
to receive income therefrom, except (i) Purchase Money Liens securing
Indebtedness permitted to be incurred pursuant to clause (iv) of Section 4.9(b)
hereof, and (ii) Permitted Liens.
SECTION 4.13. CORPORATE EXISTENCE.
Subject to Article 5 of this Indenture, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its respective Restricted Subsidiaries, in accordance with their respective
organizational documents (as the same may be amended from time to time) and (ii)
its (and its Restricted Subsidiaries) rights (charter and statutory), licenses
and franchises; PROVIDED, that the Company shall not be required to preserve any
such right, license or franchise, or the corporate, partnership or other
existence of any Restricted Subsidiary, if the Board of Directors on behalf of
the Company shall determine in good faith that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.14. REPURCHASE UPON A CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, the Company shall notify the
Trustee in writing thereof and shall make an offer to purchase all of the Notes
then outstanding as described below (the "CHANGE OF CONTROL OFFER") at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase (the "CHANGE OF
CONTROL PAYMENT").
The Change of Control Offer shall be made in compliance with all applicable
laws, including without limitation, Regulation 14E of the Exchange Act and all
other applicable Federal and state securities laws. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 4.14, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.14 by virtue thereof.
Within 10 days following any Change of Control, the Company shall commence
the Change of Control Offer by mailing to the Trustee and each Holder a notice,
which shall govern the terms of the Change of Control Offer, and shall state
that:
(i) the Change of Control Offer is being made pursuant to this
Section 4.14 and that all Notes tendered will be accepted for payment,
-36-
(ii) the purchase price and the purchase date, which shall be a
Business Day no earlier than 30 days nor later than 40 days from the date
such notice is mailed (the "Change of Control Payment Date"),
(iii) any Note not tendered for payment pursuant to the Change of
Control Offer shall continue to accrue interest,
(iv) unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest on the Change of Control
Payment Date,
(v) any Holder electing to have Notes purchased pursuant to a Change
of Control Offer shall be required to surrender such Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day preceding the Change of
Control Payment Date,
(vi) any Holder shall be entitled to withdraw such election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes such Holder delivered for purchase,
and a statement that such Xxxxxx is withdrawing his election to have such
Notes purchased,
(vii) a Holder whose Notes are being purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1 in
principal amount or an integral multiple thereof,
(viii) the instructions that Holders must follow in order to tender
their Notes, and
(ix) the circumstances and relevant facts regarding such Change of
Control.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (i) accept for payment the Notes or portions thereof tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all Notes or portions
thereof so tendered and not withdrawn, and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating that the Notes or portions thereof tendered to the Company
are accepted for payment. The Paying Agent shall promptly mail to each Holder of
Notes so accepted payment in an amount equal to the purchase price for such
Notes, and the Trustee shall authenticate and mail to each Holder a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any, PROVIDED, that each such new Note will be in principal amount of $1 or
an integral multiple thereof.
-37-
The Company shall make a public announcement of the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date. For the purposes of this Section 4.14, the Trustee shall act as
the Paying Agent.
SECTION 4.15. MAINTENANCE OF PROPERTIES.
The Company shall, and shall cause each of its Restricted Subsidiaries to,
maintain their properties and assets in normal working order and condition as on
the date of this Indenture (reasonable wear and tear excepted) and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole;
PROVIDED, that nothing herein shall prevent the Company or any of its
Subsidiaries from discontinuing any maintenance of any such properties if such
discontinuance is desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole.
SECTION 4.16. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause each of its Subsidiaries to, maintain
liability, casualty and other insurance (including self-insurance consistent
with prior practice) with responsible insurance companies in such amounts and
against such risks as is in accordance with customary industry practice in the
general areas in which the Company and its Subsidiaries operate.
SECTION 4.17. RESTRICTIONS ON SALE AND ISSUANCE OF SUBSIDIARY STOCK.
The Company shall not sell, and shall not permit any of its Restricted
Subsidiaries to issue or sell, any shares of Capital Stock of any Restricted
Subsidiary to any Person other than the Company or a Wholly Owned Subsidiary;
PROVIDED, that the Company and its Restricted Subsidiaries may sell all of the
Capital Stock of a Restricted Subsidiary owned by the Company and its Restricted
Subsidiaries if the Net Proceeds from such Asset Sale are used in accordance
with the provisions of Section 4.10 of this Indenture.
SECTION 4.18. LINE OF BUSINESS.
The Company shall not, and shall not permit any Subsidiary to, directly or
indirectly, engage in any business other than (a) the manufacture, distribution
and retailing of confectionery items and (b) any business that in the
reasonable, good faith judgment of the Board of Directors of the Company is
directly related to such business.
SECTION 4.19. COMPLIANCE WITH LAWS.
The Company shall, and shall cause each of its Subsidiaries to, comply with
the requirements of all applicable laws, rules, regulations, and orders of any
Governmental Authority (subject to the Company's ongoing environmental
remediation efforts), including the Fair Labor Standards Act and the Americans
With Disabilities Act, other than laws, rules, regulations, and orders the
non-compliance with which, individually or
-38-
in the aggregate, would not result in and reasonably could not be expected to
result in a Material Adverse Change.
SECTION 4.20. ENVIRONMENTAL.
The Company shall, and shall cause each of its Subsidiaries to promptly
provide Trustee with written notice within 10 days of the receipt of any of the
following: (i) notice that an Environmental Lien has been filed against any of
the real or personal property of the Company or any Subsidiary, (ii)
commencement of any Environmental Action or notice that an Environmental Action
will be filed against the Company or any Subsidiary, and (iii) notice of a
violation, citation, or other administrative order which, in the case of any
clauses (i), (ii) or (iii) reasonably could be expected to result in a Material
Adverse Change. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates). Trustee has no
responsibility for such notice, and contents thereof, nor for forwarding such
notices or contents thereof to any Person.
SECTION 4.21. CHANGE IN LOCATION OF CHIEF EXECUTIVE OFFICE.
The Company shall not, and shall not permit any Restricted Subsidiary to,
relocate its chief executive office to a new location without providing 30 days
prior written notification thereof to Trustee and so long as, at the time of
such written notification, the applicable party provides any financing
statements or fixture filings necessary to perfect and continue perfected the
Trustee's Liens.
ARTICLE 5
SUCCESSORS
SECTION 5.1. WHEN THE COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or transfer all or substantially all of
its properties or assets (determined on a consolidated basis for the Company and
its Restricted Subsidiaries) in one or more related transactions to, any other
Person unless:
(i) the Company is the surviving Person or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or
to which such transfer has been made is a corporation organized and
existing under the laws of the United States, any state thereof or the
District of Columbia,
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such transfer has
been made assumes all the Obligations of the Company, pursuant to a
supplemental indenture and Security Documents in a form reasonably
satisfactory to the Trustee, under the Notes, this Indenture, and the
Security Documents,
-39-
(iii) immediately before, and after giving effect on a PRO FORMA basis
to, such transaction, no Default or Event of Default exists or would occur,
and
(iv) the Company, or any Person formed by or surviving any such
consolidation or merger, or to which such transfer has been made, (A) has a
Consolidated Net Worth (immediately after the transaction but prior to any
purchase accounting adjustments resulting from the transaction) equal to or
greater than the Consolidated Net Worth of the Company immediately
preceding the transaction and (B) is permitted, at the time of such
transaction and after giving PRO FORMA effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter
period, to incur at least $1.00 of additional Indebtedness pursuant to
Section 4.9(a) hereof.
The Company shall deliver to the Trustee prior to the consummation of any
proposed transaction an Officers' Certificate and an Opinion of Counsel, each
stating all conditions precedent to the proposed transaction provided for in
this Indenture have been complied with, and a written statement from a firm of
independent public accountants of established national reputation reasonably
satisfactory to the Trustee stating that the proposed transaction complies with
clause (iv).
For purposes of this Section 5.1, the transfer of all or substantially all
of the properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 5.2. SUCCESSOR SUBSTITUTED.
In the event of any transaction (other than a lease) contemplated by
Section 5.1 hereof in which the Company is not the surviving Person, the
successor formed by such consolidation or into or with which the Company is
merged or to which such transfer is made, or formed by such reorganization, as
the case may be, shall succeed to, and be substituted for, and may exercise
every right and power of, the Company, and the Company shall be discharged from
its Obligations under this Indenture, the Notes, and the Security Documents with
the same effect as if such successor Person had been named as the Company herein
or therein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days;
-40-
(2) the Company defaults in the payment of the principal (or
premium, if any) on any Note when the same becomes due and payable at
maturity, upon redemption, by acceleration or otherwise;
(3) the Company defaults in the performance of or breaches the
provisions of Article 5 hereof, the Company fails to make or
consummate an Excess Proceeds Offer in accordance with the provisions
of Section 4.10 or fails to make or consummate a Change in Control
Offer in accordance with the provisions of Section 4.14;
(4) the Company or any Guarantor fails to comply with any of its
other agreements or covenants in, or provisions of, the Notes, this
Indenture or the Security Documents and the Default continues for 30
days after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the then outstanding Notes, such
notice to state that it is a "Notice of Default;"
(5) a default occurs under (after giving effect to any waivers,
amendments, applicable grace periods or any extension of any maturity
date) any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any Guarantor (or the payment of
which is guaranteed by the Company or any Guarantor), whether such
Indebtedness or guarantee now exists or is created after the date of
this Indenture, if (a) either (i) such default results from the
failure to pay principal on such Indebtedness or (ii) as a result of
such default the maturity of such Indebtedness has been accelerated,
and (b) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness with respect to which
such a payment default (after the expiration of any applicable grace
period or any extension of the maturity date) has occurred, or the
maturity of which has been so accelerated, exceeds $5.0 million in the
aggregate;
(6) a final non-appealable judgment or judgments for the payment
of money (other than judgments as to which a reputable insurance
company has accepted full liability) is or are entered by a court or
courts of competent jurisdiction against the Company or any Guarantor
and such judgment or judgments remain undischarged, unbonded or
unstayed for a period of 60 days after entry, PROVIDED that the
aggregate of all such judgments exceeds $7.5 million;
(7) breach by the Company or any Guarantor of any material
representation or warranty set forth in the Security Documents, which
breach is not cured by the Company or such Guarantor or waived within
30 days after notice to comply with such breach of a material
representation or warranty;
-41-
(8) written assertion by the Company or any of the Guarantors of
the unenforceability of their obligations under the Indenture, the
Notes, the Security Documents, or the Guarantees or the Company or any
of the Guarantors takes any action that causes, or asserts, or fails
to take any action that it knows, or has been notified by the Trustee,
is necessary to prevent, the unenforceability of the Indenture, the
Notes, the Security Documents or the Guarantees against the Company or
any Guarantor or is necessary to maintain the priority and perfection
of the Liens of the Security Documents;
(9) the Company or any Material Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against
it in an involuntary case,
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors,
(e) admits in writing its inability to pay debts as the same
become due;
(10) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any Material
Subsidiary in an involuntary case,
(b) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of their property,
orders the liquidation of the Company, or any Material
Subsidiary, and in any of the cases described in clauses (a) or
(b) the order or decree remains unstayed and in effect for 60
days;
(11) (A) any holder (other than a Holder of the Notes) of at
least $5 million in aggregate principal amount of secured Indebtedness
of the Company or of any Subsidiary as to which a default has occurred
and is continuing shall commence judicial proceedings (which
proceedings shall remain unstayed for 30 Business Days) to foreclose
upon assets of the Company or any Material Subsidiary having an
aggregate fair market value, individually or in the aggregate, in
excess of $5 million or shall have successfully exercised any right
under applicable law or applicable security documents to take
ownership of any such assets in lieu of
-42-
foreclosure or (B) any action described in the foregoing clause (A)
shall result in any court of competent jurisdiction issuing any order
for the seizure of such assets; or
(12) the Guaranty ceases to be in full force and effect or is
declared null and void or any Guarantor denies that it has any further
liability under the Guaranty, or gives notice to such effect (other
than by reason of the termination of this Indenture or the release of
any such Guaranty in accordance with this Indenture) and such
condition shall have continued for a period of 30 days after written
notice of such failure requiring the Guarantor and the Company to
remedy the same shall have been given (x) to the Company by the
Trustee or (y) to the Company and the Trustee by the holders of 25% in
aggregate principal amount of the Notes then outstanding.
The Company shall, upon becoming aware that a Default or Event of Default
has occurred, deliver to the Trustee a statement specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 6.2. ACCELERATION.
If an Event of Default (other than an Event of Default specified in clauses
(9) and (10) of Section 6.1) occurs and is continuing, the Trustee by written
notice to the Company, or the Holders of at least 25% in principal amount of the
then outstanding Notes by written notice to the Company and the Trustee, may
declare the unpaid principal of and any accrued interest on all the Notes to be
due and payable. Upon such declaration the principal and interest shall be due
and payable immediately. If an Event of Default specified in clause (9) or (10)
of Section 6.1 with respect to the Company occurs, all outstanding Notes shall
IPSO FACTO become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. At any time after a
declaration of acceleration, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the Notes outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest (including any interest
accrued subsequent to an Event of Default specified in clauses (9) and (10) of
Section 6.1) on all Notes, (iii) the principal of and premium, if any, on any
Notes that have become due otherwise than by such declaration or occurrence of
acceleration and interest thereon at the rate borne by the Notes and (iv) to the
extent that payment of such interest is lawful, interest upon overdue interest
at the rate borne by the Notes; (b) all Events of Default, other than the
nonpayment of principal of and interest on the Notes that have become due solely
by such declaration or occurrence of acceleration, have been cured or waived;
and (c) the rescission would not conflict with any judgment, order or decree of
any court of competent jurisdiction.
-43-
SECTION 6.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy (under this Indenture or otherwise) to collect the payment of
principal or interest on the Notes to enforce the performance of any provision
of the Notes, this Indenture or the Security Documents.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Holders of a majority of the aggregate principal amount of the then
outstanding Notes by written notice to the Company and the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under this Indenture except: (i) a continuing
Default or Event of Default in the payment of the principal of, or interest on,
any Note; (ii) a Default or an Event of Default with respect to any covenant or
provision which cannot be modified or amended without the consent of the Holder
of each outstanding Note affected; or (iii) an Event of Default with respect to
any covenant or provision hereof which under Article 9 cannot be modified or
amended without the consent of Holders of at least 66-2/3% in principal amount
of the then outstanding Notes. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 6.5. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, that the Trustee determines may be unduly prejudicial to
the rights of other Holders, or that may involve the Trustee in personal
liability.
SECTION 6.6. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(a) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
-44-
(c) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal and interest on the Note, on or
after the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(1) or (2) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal and interest remaining unpaid on the Notes and interest on overdue
principal (and premium, if any) and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor under the Notes), their creditors or their property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof out of the estate in
any such proceeding, shall be denied for any
-45-
reason, payment of the same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other properties
that the Holders of the Notes may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.7, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Notes for principal
and interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for principal and interest,
respectively;
Third: without duplication, to Holders for any other Obligations owing to
the Holders under the Notes or this Indenture; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.6, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
-46-
(1) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture and the Security Documents and use the same degree of
care and skill in its exercise as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(2) Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined solely by
the express provisions of this Indenture, and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and the Security Documents, and no others, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee.
(b) 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 and the Security Documents.
However, in the case of certificates or opinions specifically
required by any provision hereof to be furnished to it, the
Trustee shall examine the certificates and opinions to determine
whether or not they substantially conform to the requirements of
this Indenture and the Security Documents (but need not confirm
or investigate the accuracy of any mathematical calculation or
other facts stated therein).
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of paragraph
(2) of this Section.
(b) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts.
(c) 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 6.5.
(d) The Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the outstanding Notes, determined as provided
-47-
in Sections 2.8 and 2.9, relating to the time, method and place
of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Notes.
(4) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may
refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or
expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
(1) The Trustee may conclusively rely upon any document whether
in its original or facsimile form 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.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its own selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Indenture or the
Security Documents.
(5) Unless otherwise specifically provided in this Indenture or
the Security Documents, any demand, request, direction or notice from
the Company shall be sufficient if signed by an Officer of the
Company, on behalf of the Company.
-48-
(6) Except with respect to Section 4.1, the Trustee shall have
no duty to inquire as to the performance of the Company's covenants in
Article 4 hereof.
(7) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Order.
(8) The Trustee may consult with counsel of its selection, as
well as other experts and consultants, and the advice of such counsel,
any Opinion of Counsel or advice of such experts or consultants shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(9) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture or the Security
Documents at the request or direction of any of the Holders pursuant
to this Indenture or the Security Documents, unless such Holders shall
have offered to the Trustee reasonable security or indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
(10) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or
investigation.
(11) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references
the Notes and this Indenture.
(12) The powers and duties conferred upon the Trustee by this
Article 7 are solely to protect the Trustee and the lien of the
Security Documents and shall not impose any duty upon the Trustee to
exercise any such powers and duties, except as expressly provided in
the Indenture.
(13) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
-49-
indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(14) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights. However, the Trustee is subject to Sections 7.10
and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision hereof,
it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if the
Trustee has knowledge thereof (within the meaning of Section 7.2(11)), the
Trustee shall mail to the Holders a notice of the Default or Event of Default
within 90 days after it obtains such knowledge.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to the Holders a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a copy of
each report at the time of its mailing to the Holders shall be filed with the
Commission and
-50-
each stock exchange on which the Notes are listed. The Company shall promptly
notify the Trustee if the Notes are listed on any stock exchange or delisted
therefrom.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation
for its acceptance of this Indenture and services hereunder as the parties shall
agree in writing from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and any
counsel, expert or consultant except such disbursements, advances and expenses
as shall be determined to have been caused by its own negligence or willful
misconduct.
The Company shall indemnify the Trustee against any and all losses,
liabilities, claims, damages or expenses incurred by it without a determination
of negligence or willful misconduct on its part arising out of or in connection
with the acceptance or administration of its duties under this Indenture and the
Security Documents, except as set forth below. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
reasonably cooperate in the defense. In the event that a conflict of interest or
conflicting defenses would arise in connection with the representation of the
Company and the Trustee by the same counsel, the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture and resignation or removal of the
Trustee.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through its own negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal of (and premium, if
any) and interest on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(9) or (10) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
-51-
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal
amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property;
(d) a conflict of interest arises concerning the Trustee and continues for
90 days; or
(e) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition at the expense of the Company any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee after written request by any Holder who has been a Holder
for at least six months fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to the
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, PROVIDED that all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.7.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring Trustee, and the Company shall pay to any such replaced or removed
Trustee all amounts owed under Section 7.7 upon such replacement or removal.
-52-
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that shall (a) be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof or of the District of Columbia authorized under
such laws to exercise corporate trustee power, (b) be subject to supervision or
examination by Federal or state or the District of Columbia authority, and (c)
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to
TIA Section 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operations of TIA Section 310(b)(1) any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
The provisions of TIA Section 311 shall apply to the Company, as obligor on
the Notes.
SECTION 7.12. APPOINTMENT AS FONDE DE POUVOIR.
For the purposes of the jurisdiction of the Province of Quebec, the Company
hereby appoints the Trustee as the FONDE DE POUVOIR of the Holders, as
contemplated by Article 2692 of the Civil Code of Quebec, to take and hold on
behalf of and for the benefit of, each of the Holders, any security under the
Security Documents which is subject to the laws of the jurisdiction of the
Province of Quebec to secure the payment of the Notes, and to exercise the
powers and duties which are conferred upon the Trustee under the Indenture. Each
of the Holders, by acquiring Notes, shall be deemed to have consented to and
confirmed the appointment of the Trustee as FONDE DE POUVOIR to take and hold on
behalf of, and for the benefit of, each of the Holders, any such security and to
exercise such powers and duties. Reference herein, in the Security Documents and
in any other documents executed by the Trustee acting in its capacity as trustee
for the Holders shall, for the purposes of the jurisdiction of the Province of
Quebec, include its acting in its capacity as FONDE DE POUVOIR as hereinabove
contemplated.
-53-
The Trustee hereby accepts its appointment as FONDE DE POUVOIR and agrees
to take and hold any security under the Security Documents and to exercise the
powers and duties conferred upon the FONDE DE POUVOIR as provided above.
Each Person who becomes a Holder, by becoming a Holder shall be deemed for
all purposes to have consented to and confirmed the appointment of the Trustee
as FONDE DE POUVOIR for the Holders as herein provided, to be governed by the
provisions of this Indenture dealing with the FONDE DE POUVOIR and to have
ratified, as of the date such Person becomes a Holder, all actions taken and all
documents signed by the Trustee, as FONDE DE POUVOIR, under the terms of the
Indenture.
SECTION 7.13. APPOINTMENT OF CANADIAN CO-TRUSTEE.
It is recognized that in case of litigation under this Agreement or the
Security Documents, and in particular in case of the enforcement thereof on
default, or in the case that the Trustee deems that by reason of any present or
future law of Canada it may not exercise any of the powers, rights or remedies
herein granted to the Trustee or hold title to the properties, in trust, as
herein granted or take any action which may be desirable or necessary in
connection therewith, it may be necessary that the Trustee appoint an individual
or institution as a separate or co-trustee (each, a "Co-Trustee") with respect
to Xxxxxxxxx Xxxxx (Canada). The following provisions of this Section are
adopted to these ends.
In the event that the Trustee appoints an individual or institution as a
Co-Trustee with respect to Xxxxxxxxx Xxxxx (Canada), each and every remedy,
power, right, claim, demand, cause of action, immunity, estate, title, interest
and lien expressed or intended by this Indenture to be exercised by or vested in
or conveyed to the Trustee with respect thereto shall be exercisable by and vest
in such Co-Trustee to exercise such powers, rights and remedies, and only to the
extent that the Trustee by the laws of Canada is incapable of exercising such
powers, rights and remedies and every covenant and obligation necessary to the
exercise thereof by such Co-Trustee shall run to and be enforceable by either of
them.
Should any instrument in writing from the Company and/or the Guarantors be
required by the Co-Trustee so appointed by the Trustee for more fully and
certainly vesting in and confirming to him or it such properties, rights,
powers, trusts, duties and obligations, any and all such instruments in writing
shall, on request, be executed, acknowledged and delivered by the Company and
the Guarantors provided, that if an Event of Default shall have occurred and be
continuing, if the Company and the Guarantors do not execute any such instrument
within fifteen (15) days after the request therefor, the Trustees shall be
empowered as an attorney-in-fact for the Company and the Guarantors to execute
any such instrument in the Company and the Guarantors' names and stead. In case
any Co-Trustee or a successor to either shall die, become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, duties and
obligations of such Co-Trustee, so far as permitted by law, shall vest in and be
exercised by the Trustee until the appointment of a new trustee or successor to
such Co-Trustee.
-54-
Every Co-Trustee shall, to the extent permitted by law, be appointment and
act subject to the following provisions and conditions:
(i) all rights and powers, conferred or imposed upon the Trustee
shall be conferred or imposed upon and may be exercised or
performed by such Co-Trustee; and
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then Co-Trustees, as effectively as if given
to each of them. Every instrument appointing any Co-Trustee shall refer to this
Indenture and the conditions of this Article.
Any Co-Trustee may at any time appoint the Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Agreement or the Security
Documents on its behalf and in its name.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1. TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except that Section
7.7, 8.3 and 8.4 shall survive) when all outstanding Notes theretofore
authenticated and issued have been delivered (other than (i) destroyed, lost or
stolen Notes that have been replaced or paid and (ii) Notes for whose payment
money has theretofore been deposited in trust and thereafter repaid to the
Company pursuant to Section 8.3(b) hereof) to the Trustee for cancellation and
all sums payable by the Company hereunder have been paid. In addition, the
Company may (A) if applicable, be discharged from any and all Obligations in
respect of the Notes, other than the obligation to duly and punctually pay the
principal of, and premium, if any, and interest on the Notes, in accordance
herewith, or (B) if applicable, omit to comply with restrictive covenants, and
such omission will not be deemed to be an Event of Default if:
(1) with respect to clauses (A) and (B), the Company irrevocably
deposits in trust with the Trustee or at the option of the Trustee,
with a trustee reasonably satisfactory to the Trustee and the Company
under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, money or U.S. Government
Obligations sufficient (as certified by a nationally recognized
accounting firm designated by the Company) to pay principal and
interest and premium, if any, on the Notes to maturity or redemption
and each installment of interest, if any, on the due dates thereof on
the Notes, as the case may be, and to pay all other sums payable by it
hereunder or under
-55-
any of the Security Documents, PROVIDED that (i) the trustee of the
irrevocable trust shall have been irrevocably instructed to pay such
money or the proceeds of such U.S. Government Obligations to the
Trustee and (ii) the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations
to the payment of said principal, premium, if any, and interest with
respect to the Notes;
(2) with respect to clause (A), the Company has received from,
or there has been published by, the U.S. Internal Revenue Service a
ruling or there has been a change in laws which in the opinion of
independent counsel, which the Company shall deliver to the Trustee,
provides that holders of the Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred and the Notes were otherwise paid or redeemed in accordance
with the provisions of this Indenture;
(3) with respect to clause (A) and (B), the Company has
delivered to the Trustee an opinion of independent counsel to the
effect that the holders of the Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred and the Notes were otherwise paid or redeemed in accordance
with the provisions of this Indenture;
(4) with respect to clause (A) and (B), no Default or Event of
Default shall have occurred or be continuing; and
(5) with respect to clause (A) and (B), the Company delivers to
the Trustee an Officers' Certificate stating that all conditions
precedent to satisfaction and discharge of this Indenture have been
complied with, and an Opinion of Counsel to the same effect.
The Trustee, on demand of the Company, shall execute proper instruments
acknowledging confirmation of and discharge under this Indenture and the release
of the Liens created under the Collateral Documents. However, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 4.1, 4.6, 7.7, 7.8, 8.3 and
8.4, the Guarantors' obligations, and the Trustee's and Paying Agent's
obligations in Section 8.3 shall survive such satisfaction and discharge until
the Notes are no longer outstanding. Thereafter, only the Company's obligations
in Section 7.7 and 8.4 and the Company's, Trustee's and Paying Agent's
obligations in Section 8.3 shall survive such satisfaction and discharge.
After such irrevocable deposit has been made pursuant to this Section 8.1
and satisfaction of the other conditions set forth herein, the Trustee upon
request shall
-56-
acknowledge in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal,
premium, if any, or interest on the Notes, the U.S. Government Obligations shall
be payable as to principal, premium, if any, or interest at least one Business
Day before such payment date in such amounts as shall provide the necessary
money. U.S. Government Obligations shall not be callable at the issuer's option.
SECTION 8.2. APPLICATION OF TRUST MONEY.
The Trustee, or a trustee satisfactory to the Trustee and the Company,
shall hold in trust, money or U.S. Government Obligations deposited with it
pursuant to Section 8.1. 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, premium, if any, and interest on the
Notes.
SECTION 8.3. REPAYMENT TO THE COMPANY.
(a) The Trustee and the Paying Agent shall promptly pay to the Company
upon written request any excess money or securities (as certified by an
independent public accountant reasonably acceptable to the Trustee) held by them
at any time.
(b) The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due; PROVIDED that the Company shall have either
caused notice of such payment to be mailed to each Holder entitled thereto no
less than 30 days prior to such repayment or within such period shall have
published such notice in a financial newspaper of widespread circulation
published in the City of
New York, including, without limitation, THE WALL
STREET JOURNAL.
After payment to the Company, Holders entitled to the money must look to
the Company for payment as general creditor unless an applicable abandoned
property law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 8.4. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.2 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
Obligations of the Company and the Guarantors under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.1 until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 8.2;
PROVIDED that if the Company has made any payment of interest on or principal of
any Notes because of the reinstatement of such Obligations, the
-57-
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.1. WITHOUT CONSENT OF HOLDERS.
The Company, the Guarantors and the Trustee may amend or supplement this
Indenture and the Notes without the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with Article 5 and Section 10.7 hereof;
(4) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely
affect the legal rights hereunder or thereunder of any Holder;
(5) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
or
(6) to release any Guarantee of the Notes permitted to be
released under Section 10.11 hereof or add any Guarantor under Section
10.7
Upon the request of the Company, accompanied by a resolution of the Board
of Directors of the Company authorizing the execution of any such supplemental
indenture or amendment, and upon receipt by the Trustee of the documents
described in Section 9.6 hereof required or requested by the Trustee, the
Trustee shall join with the Company in the execution of any such supplemental
indenture or amendment authorized or permitted by the terms of this Indenture
and shall make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture or amendment that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.2. WITH CONSENT OF HOLDERS.
Subject to Sections 6.4 and 6.7 hereof, the Company and the Trustee, as
applicable, may amend, or waive any provision of, this Indenture or the Notes or
the Security Documents, with the written consent of the Holders of at least a
majority of the principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes); provided, that any amendment or waiver of the provisions of Sections
4.7, 4.9, 4.10, 4.12 or 10.3 hereof
-58-
shall require the written consent of the Holders of at least 66 2/3% of the
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for Notes).
Upon the request of the Company, accompanied by a resolution of the Board
of Directors of the Company authorizing the execution of any such supplemental
indenture or amendment, and upon filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon
receipt by the Trustee of the documents described in Section 9.6 hereof, the
Trustee shall join with the Company in the execution of such supplemental
indenture or amendment unless such supplemental indenture or amendment affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed supplemental indenture or
amendment, but it shall be sufficient if such consent approves the substance
thereof.
After a supplemental indenture or amendment under this Section becomes
effective, the Company shall mail to the Holders of each Note affected thereby a
notice briefly describing the amendment or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture, amendment or waiver.
Notwithstanding any other provision hereof, without the consent of each
Holder affected, an amendment or waiver under this Section may not (with respect
to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of, or the premium on, or change the
fixed maturity of any Note or alter Article 3 hereof or numbered
paragraphs 5 or 6 of Exhibit A to this Indenture or the price at which
the Company shall offer to purchase such Notes pursuant to Sections
4.10 or 4.14 hereof;
(3) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on, or redemption payment
with respect to, any Note (other than a Default in the payment of an
amount due as a result of an acceleration if the Holder rescinds such
acceleration pursuant to Section 6.2);
(5) make any Note payable in money other than that stated in the
Notes;
-59-
(6) make any change in Section 6.4 or 6.7 hereof or in this
Section 9.2;
(7) waive a redemption payment with respect to any Note;
(8) make any change in provisions of any of the Guarantees that
adversely affects the rights of any holder of Notes;
(9) after a period of fifteen days from the Issue Date, make any
change adversely affecting the rights of the Holders of the Notes
under Article 11 hereof; or
(10) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
If, at the time of an amendment to this Indenture or the Notes, this
Indenture shall be qualified under the TIA, every amendment to this Indenture or
the Notes shall be set forth in a supplemental indenture that complies with the
TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until a supplemental indenture, an amendment or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may fix a record date for determining which Holders must
consent to such supplemental indenture, amendment or waiver. If the Company
fixes a record date, the record date shall be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee prior to such solicitation pursuant to
Section 2.5, or (ii) such other date as the Company shall designate.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about a supplemental
indenture, amendment or waiver on any Note thereafter authenticated. The Company
in exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment or waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
-60-
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 9 if the amendment does not affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing or refusing to sign such amendment or supplemental
indenture, the Trustee shall be entitled to receive, if requested, an indemnity
reasonably satisfactory to it and shall be provided with and, subject to Section
7.1, shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it shall be valid and binding upon the Company
in accordance with its terms. The Company may not sign an amendment or
supplemental indenture until the Board of Directors of the Company approves it
in writing or by duly authorized meeting evidenced by corporate minutes.
SECTION 9.7. PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement, which solicitation documents must be mailed to all Holders
of the Notes a reasonable length of time prior to the expiration of the
solicitation.
ARTICLE 10
COLLATERAL AND SECURITY AND GUARANTY
SECTION 10.1. COLLATERAL DOCUMENTS.
The due and punctual payment of the principal and premium, if any, of, and
interest on, the Notes when and as the same shall be due and payable, whether on
an interest payment date, at maturity, by acceleration, repurchase, redemption
or otherwise, interest on the overdue principal of and interest (to the extent
permitted by law), if any, on the Notes and Guarantees and performance of all
other Obligations of the Company to the Trustee for itself and on behalf of the
Holders hereunder, shall be secured as provided in the Security Documents.
The Company shall, and shall cause each of its Restricted Subsidiaries to,
do or cause to be done all such acts and things as may be necessary or proper,
or as may be required by the provisions of the Security Documents, to assure and
confirm to the Trustee the security interest in the Collateral contemplated
hereby and by the Security Documents, as from time to time constituted, so as to
render the same available for the security and benefit of this Indenture and of
the Notes secured hereby, according to the intent and purposes herein and
therein expressed. The Company shall, and shall cause each of its Restricted
Subsidiaries to, take any and all actions required to cause the Security
Documents to create and maintain, as security for the Company's and its
Restricted Subsidiaries' Obligations under this Indenture, the Notes or the
Guarantees of
-61-
the Notes, valid and enforceable, perfected (except as expressly provided herein
or therein), Liens in and on all the Collateral, in favor of the Trustee,
superior to and prior to the rights of all third Persons (other than the holders
of the Senior Debt), and subject to no other Liens (other than the Liens
securing the Senior Debt), other than as provided herein and therein.
SECTION 10.2. OPINIONS.
The Company shall furnish to the Trustee within three months after each
anniversary of the Closing Date, an Opinion of Counsel, dated as of such date,
stating either that (i) in the opinion of such counsel, all action has been
taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance as
is necessary to maintain the Liens of the Security Documents and reciting the
details of such action or (ii) in the opinion of such Counsel, no such action is
necessary to maintain such Liens, which Opinion of Counsel also shall state what
actions it then believes are necessary to maintain the effectiveness of such
liens during the next two years.
SECTION 10.3. RELEASE OF COLLATERAL.
The Collateral shall be released from the Lien of the Security Documents as
expressly provided therein or in connection with any transaction permitted by
Section 4.10 of this Indenture and as otherwise required pursuant to Article 11
of this Indenture. Collateral shall also be released with the written consent of
Holders of at least 66?% in principal amount of the then outstanding Notes.
To the extent applicable, the Company shall cause TIA Section 314(d)
relating to the release of property from the Lien of the Security Documents to
be complied with. Any certificate or opinion required by TIA Section 314(d) may
be made by an officer of the Company, except in cases in which TIA Section
314(d) requires that such certificate or opinion be made by an independent
Person.
The release of any Collateral from the terms hereof and of the Security
Documents pursuant to the terms of the Security Documents or this Indenture will
not be deemed to impair the security under this Indenture in contravention of
the provisions hereof.
SECTION 10.4. DISPOSITION OF COLLATERAL WITHOUT RELEASE.
(a) In addition to and without limiting the provisions of Section 10.3 and
subject to Section 4.10, at any time and from time to time, the Company and any
Guarantors may without any release or consent of the Trustee or the Majority
Noteholders:
(i) sell, dispose of or otherwise use inventory in the ordinary
course of the Company's or the Guarantors' business;
-62-
(ii) collect, liquidate or otherwise dispose of Accounts (as defined
in the Security Agreement) in the ordinary course of the Company's or the
Guarantors' business;
(iii) renegotiate and terminate leasehold interests in Collateral in
the ordinary course of the Company's or the Guarantors' business; and
(iv) sell or dispose of obsolete or worn out fixtures or equipment or
other tangible personal property which are Collateral in the ordinary
course of the Company's or the Guarantors' business.
(b) The Company's and the Guarantors' right to rely upon subsection (a) of
this Section for each six-month period beginning on October 1 and April 1 (a
"Six-Month Period") shall be conditioned upon the Company and the Guarantors
delivering to the Trustee, within 30 days following the end of such Six-Month
Period, an Officers' Certificate to the effect that all sales of inventory, all
collections and other dispositions of Accounts (as defined in the Security
Agreement) and any other disposition contemplated by Section 10.4(a) by the
Company and the Guarantors during such Six-Month Period were in the ordinary
course of the Company's and the Guarantors' business and that all proceeds
therefrom were used by the Company and the Guarantors in the ordinary course of
their business or to make other cash payments permitted by this Indenture.
SECTION 10.5. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS.
The Trustee may, in its sole discretion and without the consent of the
Holders, on behalf of the Holders, 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 and the Guarantors, if any, hereunder, in each case,
subject to the provisions of Article 11 of this Indenture. The Trustee shall
have the power to institute and to 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 interest 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 the Trustee) in each case, subject to the provisions of Article 11 of
this Indenture.
In connection with acting as mortgagee under the Mortgages, the Trustee may
appoint a co-trustee in any jurisdiction where realty of the Company subject to
the Mortgages is located, if required by applicable law. Such co-trustee shall
be appointed solely to act as mortgagee, and the trustee shall not be
responsible for the acts or
-63-
omissions of any co-trustee provided such co-trustee was selected with due care.
The co-trustee may be an affiliate of the trustee.
SECTION 10.6. 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 and the Security Documents.
SECTION 10.7. GUARANTY.
The Company shall cause each Restricted Subsidiary that is formed or
acquired after the date hereof, in each case concurrently therewith, subject to
Section 10.8 hereof, to, jointly and severally, unconditionally guarantee (such
guarantee, together with further guarantees granted from time to time pursuant
to this Section 10.7 and the guarantee of Xxxxxxxxx Xxxxx (Canada) pursuant to
Section 10.12 hereof, being the "Guaranty") to each Holder and the Trustee,
irrespective of the validity or enforceability of this Indenture, the Notes, the
Security Documents or the Obligations hereunder or thereunder: (i) the due and
punctual payment of the principal and premium, if any, of, and interest on, the
Notes (including, without limitation, interest after the filing of a petition
initiating any proceedings referred to in clause (9) or (10) of Section 6.1
hereof), whether at maturity or on an interest payment date, by acceleration,
call for redemption or otherwise; (ii) the due and punctual payment of interest
on the overdue principal and premium, if any, of, and interest on, the Notes, if
lawful; (iii) the due and punctual payment and performance of all other
Obligations hereunder and under the Notes and the Security Documents, all in
accordance with the terms set forth herein and in the Notes and the Security
Documents; and (iv) in case of any extension of time of payment or renewal of
any Notes or any of such other Obligations, the due and punctual payment or
performance thereof in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due by the Company of any amount so guaranteed for
whatever reason, the Guarantors shall be jointly and severally obligated to pay
the same immediately.
The Company shall cause each Restricted Subsidiary that is formed or
acquired after the date hereof or that otherwise becomes a Restricted Subsidiary
after the date hereof, in each case concurrently therewith, to (i) execute and
deliver to the Trustee a Guaranty in the form of Exhibit C attached hereto and a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall unconditionally guarantee all of the
Company's Obligations as set forth in this Section 10.7 of this Indenture; and
(ii) execute a Security Agreement (substantially in the form of the Security
Agreement entered into on the Closing Date) and other Security Documents
necessary or reasonably requested by the Trustee to grant the Trustee a valid,
enforceable, perfected Lien on the Collateral described therein, subject only to
Liens permitted under Section 4.12; and (iii) cause such Restricted Subsidiary
to deliver to the
-64-
Trustee an Opinion of Counsel, in form reasonably satisfactory to the Trustee,
that (A) such Security Agreement, supplemental indenture and Guaranty have been
duly authorized, executed and delivered by such Restricted Subsidiary and (B)
such Security Agreement, this Indenture and such Guaranty constitute a legal,
valid, binding and enforceable obligation of such Restricted Subsidiary, subject
to customary exceptions for bankruptcy, fraudulent transfer and equitable
principles.
Each Note issued after the date of execution by any Guarantor of a Guaranty
shall be endorsed with a form of Guaranty that has been executed by such
Guarantor. However, the failure of any Note to have endorsed thereon a Guaranty
executed by such Guarantor shall not affect the validity or enforceability of
such Guaranty against such Guarantor.
Pursuant to the supplemental indenture, each Guarantor shall agree that (i)
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes, this Indenture, the Security
Documents or the Obligations hereunder or thereunder, the absence of any action
to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, any releases of Collateral, any amendment of the
Indenture, the Notes or Security Documents, any delays in obtaining or realizing
upon or failures to obtain or realize upon Collateral, the recovery of any
judgment against the Company or any of its Subsidiaries, any action to enforce
the same, or any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of a guarantor and (ii) the Guaranty will not be
discharged except by complete performance of the Company's and its Restricted
Subsidiaries' Obligations under this Indenture, the Notes, the Security
Documents and the Guarantees of the Notes.
Pursuant to the supplemental indenture, each Guarantor shall agree that it
shall not be entitled to and irrevocably waives (i) diligence, presentment,
demand of payment, filing of claim with a court in the event of insolvency or
bankruptcy of the Company, any Guarantor, any other Subsidiary of the Company or
any other obligor under the Notes, any right to require a proceeding first
against the Company, any Guarantor, any other Subsidiary of the Company or any
other obligor under this Indenture, the Notes or the Security Documents,
protest, notice and all demands whatsoever, (ii) any right of subrogation,
reimbursement, exoneration, contribution or indemnification in respect of any
Obligations guaranteed hereby and (iii) any claim or other rights that it may
now or hereafter acquire against the Company or any of its Subsidiaries that
arise from the existence or performance of its Obligations under the Guaranty,
including, without limitation, any right to participate in any claim or remedy
of a Holder against the Company or any of its Subsidiaries or any Collateral
that a Holder now has or hereafter acquires, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, by any
payment made hereunder or otherwise, and including, without limitation, the
right to take or receive from the Company or any of its Subsidiaries, directly
or indirectly, in cash or other property, by setoff or in any other manner,
payment or security on account of such claim or other rights.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, any Guarantor, any other Subsidiary of the Company or any
other obligor
-65-
under this Indenture, the Notes or the Security Documents, trustee, liquidator,
or other similar official, any amount paid by the Company, any Guarantor, any
other Subsidiary of the Company or any other obligor under this Indenture, the
Notes or the Security Documents to the Trustee or such Holder, the Guaranty, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Pursuant to the supplemental indenture, each Guarantor shall agree that, as
between the Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Section 6.2 for the purposes of the Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company of the Obligations guaranteed hereby and (ii) in
the event of any declaration of acceleration of those Obligations as provided in
Section 6.2, those Obligations (whether or not due and payable) will forthwith
become due and payable by each of the Guarantors for the purpose of the
Guaranty.
SECTION 10.8. LIMITATION ON GUARANTOR'S LIABILITY.
Each Guarantor shall, by supplemental indenture, confirm, and by its
acceptance hereof each Holder hereby confirms, that it is the intention of all
such parties that the guarantee by such Guarantor pursuant to its Guaranty not
constitute a fraudulent transfer or conveyance for purposes of any Federal or
state law. To effectuate the foregoing intention, the Holders and the Guarantors
shall irrevocably agree that the obligations of each Guarantor under its
Guaranty shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor and to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guaranty, result in
the Obligations of such Guarantor under the Guaranty not constituting a
fraudulent conveyance or fraudulent transfer under Federal or state law.
SECTION 10.9. RIGHTS UNDER THE GUARANTY.
(a) No payment by any Guarantor pursuant to the provisions hereof shall
entitle such Guarantor to any payment out of any Collateral or give rise to any
claim of the Guarantors against the Trustee or any Holder.
(b) Each Guarantor waives notice of the issuance, sale and purchase of the
Notes and notice from the Trustee or the Holders from time to time of any of the
Notes of their acceptance and reliance on the Guaranty.
(c) No set-off, counterclaim, reduction or diminution of any obligation or
any defense of any kind or nature (other than performance by the Guarantors of
their obligations hereunder) that any Guarantor may have or assert against the
Trustee or any Holder shall be available hereunder to such Guarantor.
(d) Each Guarantor shall pay all costs, expenses and fees, including all
reasonable attorneys' fees and expenses, that may be incurred by the Trustee in
enforcing
-66-
or attempting to enforce the Guaranty or protecting the rights of the Trustee or
the Holder, if any, in accordance with this Indenture.
SECTION 10.10. PRIMARY OBLIGATIONS.
The Obligations of each Guarantor under its supplemental indenture shall
constitute a guaranty of payment and not of collection. Each Guarantor shall
agree that it is directly liable to each Holder hereunder, that the Obligations
of such Guarantor hereunder are independent of the Obligations of the Company or
any other Guarantor, and that a separate action may be brought against such
Guarantor, whether such action is brought against the Company or any other
Guarantor or whether the Company or any other Guarantor is joined in such
action. Each Guarantor shall agree that its liability hereunder shall be
immediate and shall not be contingent upon the exercise or enforcement by the
Trustee or the Holders of whatever remedies they may have against the Company or
any other Guarantor, or the enforcement of any lien or realization upon any
security Trustee may at any time possess. Each Guarantor shall agree that any
release that may be given by the Trustee or the Holders to the Company or any
other Guarantor shall not release such Guarantor.
SECTION 10.11. RELEASE OF GUARANTORS.
If all of the Capital Stock of any Guarantor is sold to a Person (other
than the Company or any of its Restricted Subsidiaries) and the Net Proceeds
from such Asset Sale are used in accordance with Section 4.10, then such
Guarantor will be released and discharged from all of its obligations under its
Guaranty of the Notes and this Indenture.
SECTION 10.12. GUARANTEE OF XXXXXXXXX XXXXX (CANADA) AND LS HOLDINGS.
Each of Xxxxxxxxx Xxxxx (Canada) and LS Holdings unconditionally guarantees
all of the Company's obligations as set forth in Section 10.7 of this Indenture,
and each such Guarantor agrees to all provisions of this Indenture applicable to
it, including, but not limited to, the provisions set forth in Sections 10.6,
10.7, 10.8, 10.9, 10.10, 10.11 and 10.12 of this Indenture, which provisions
shall be applicable to and bind each such Guarantor without the need for any
supplemental indenture.
ARTICLE 11
SUBORDINATION
SECTION 11.1. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note agrees (i) that the
Indebtedness evidenced by the Notes and any Guarantee is subordinated in right
of payment, to the extent and in the manner provided in this Article 11, to the
prior payment in full of all Senior Debt (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed), and (ii) all security
interests and other liens securing payment of the Notes or guaranty thereof are
and shall be subordinate, to the fullest extent permitted by law and as
hereinafter set forth, to the security interests and other liens securing the
Senior Debt notwithstanding the perfection, order of perfection or
-67-
failure to perfect, any such security interest or other lien, or the filing or
recording, order of filing or recording or failure to file or record this
agreement or any instrument or other document in any filing or recording office
in any jurisdiction. The Trustee and each Holder agrees that it will not
directly or indirectly take any action to contest or challenge the validity,
legality, perfection, priority, availability, or enforceability of any lien or
security interest of the holders of the Senior Debt upon any of the Collateral
or seek to have the same avoided, disallowed, set aside, or otherwise
invalidated in any judicial proceeding or otherwise. For the purposes of this
Agreement, the Senior Debt shall not be deemed to have been paid in full
("Indefeasible Repayment") until the obligations of the holders of the Senior
Debt to extend additional credit under the Senior Debt Documents has terminated
and 90 days have elapsed after the date on which the holders or owners thereof
shall have received payment in full of the Senior Debt in cash. The
subordination is for the benefit of and enforceable by the holders of Senior
Debt. Payments by Guarantors and the liens securing such payments shall be
subject to the same restrictions as payments by the Company hereunder and the
liens securing such payments.
SECTION 11.2. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(i) holders of Senior Debt shall be entitled to receive payment in
full in cash of all Obligations with respect to the Senior Debt (including
interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt whether or not an allowed claim)
before Holders of the Notes shall be entitled to receive any payment with
respect to the Notes (except that Holders may receive Permitted Junior
Securities); and
(ii) until all Obligations with respect to Senior Debt are paid in
full in cash, any distribution to which Holders would be entitled but for
this Article 11 shall be made to holders of Senior Debt (except that
Holders of Notes may receive Permitted Junior Securities), as their
interests may appear.
SECTION 11.3. DEFAULT ON SENIOR DEBT.
(a) The Company and each Guarantor may not make any payment or
distribution to the Trustee or any Holder in respect of Obligations with respect
to the Notes and may not acquire from the Trustee or any Holder any Notes for
cash or property (other than Permitted Junior Securities) until all principal
and other Obligations with respect to the Senior Debt have been paid in full if:
(i) a default in the payment of any principal or other Obligations,
upon acceleration or otherwise, with respect to Senior Debt occurs and is
-68-
continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Senior Debt; or
(ii) a default, other than a payment default, on any Senior Debt
occurs and is continuing that then permits holders of such Senior Debt to
accelerate its maturity and the Trustee receives a notice of the default (a
"Payment Blockage Notice") from a Person who may give it pursuant to
Section 11.11 hereof. No nonpayment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment Blockage Notice unless
such default shall have been waived for a period of not less than 90 days.
Notwithstanding the foregoing, there shall be at least 180 consecutive days
in each year during which no Payment Blockage Notice shall be in effect.
(b) The Company may and shall resume payments on and distributions in
respect of the Notes:
(i) in the case of a payment default with respect to Senior Debt,
upon the date on which such default is cured or waived in writing by the
holders of the Senior Debt; and
(ii) in the case of a nonpayment default with respect to Senior Debt,
upon the earlier of the date on which such nonpayment default is cured or
waived in writing by the holders of the Senior Debt, or 180 days after the
date on which the applicable Payment Blockage Notice is received, unless
the maturity of any Senior Debt has been accelerated;
if this Article 11 otherwise permits the payment or distribution at the time of
such cure or waiver.
SECTION 11.4. ACCELERATION OF NOTES; REMEDIES; AMENDMENTS.
(a) The Trustee shall provide the holders of Senior Debt with written
notice ten (10) Business Days prior to accelerating the payment of the Notes
because of an Event of Default.
(b) The Trustee and each Holder agrees for the benefit of the holders of
the Senior Debt that so long as any of the Senior Debt is outstanding or any
commitment under the Senior Debt Documents shall be in effect, neither the
Trustee nor the Holder of any Note shall take, or shall consent to the Company
taking, any action to sell, transfer, foreclose or realize on, or exercise any
rights or remedies whatsoever in respect of, any of the Collateral without the
prior written consent of the holders of the Senior Debt in each instance. The
holders of the Senior Debt shall have the sole and exclusive right (i) to
manage, perform, and enforce the terms of the Senior Debt Documents with respect
to the Collateral and to exercise and enforce all privileges and rights
thereunder in their discretion, including, without limitation, the exclusive
right to take or retake control or possession of Collateral and to hold, prepare
for sale, process, sell, license, dispose of, or liquidate Collateral, and (ii)
to restrict or permit, or approve or disapprove, the sale,
-69-
transfer or other disposition of the Collateral. If the holders of the Senior
Debt shall consent to any use, sale or lease of any Collateral, each of the
Trustee and the Holders (x) shall not object to such use, sale or lease of such
Collateral, (y) shall be deemed to have consented to such use, sale or lease of
such Collateral, and (z) shall (immediately upon the written request of the
holders of the Senior Debt) consent in writing to such use, sale or lease of
such Collateral. In case there shall exist either (A) an Event of Default or (B)
an "Event of Default," event of default or other similar event under any Senior
Debt Document, the holders of the Senior Debt shall retain the sole right to
exercise (I) the rights of a "secured party" in respect of the Collateral,
whether under law, including, without limitation, the Uniform Commercial Code,
under any Senior Debt Document and under any agreement, instrument or other
document relating to the Collateral or any of the foregoing or otherwise and
(II) the rights of the mortgagee under any mortgage or otherwise in respect of
the Collateral. Each of the Trustee and the Holders hereby agrees that any
Collateral and all payments or distributions upon or with respect to any
Collateral (including proceeds thereof) which is received by the Trustee or any
Holder in a foreclosure or similar proceeding shall be received in trust for the
benefit of the holders of the Senior Debt, shall be segregated from other funds
and property held by the Trustee or such Holder, and shall be forthwith turned
over to the holders of the Senior Debt in the same form received (with any
necessary endorsement) to be applied (in the case of cash) to or held as
Collateral (in the case of securities or other non-cash property) for the
payment or prepayment of the Senior Debt until the Senior Debt shall have been
Indefeasibly Repaid and all commitments thereunder shall have terminated or
expired.
(c) In the event the holders of the Senior Debt consent to any sale,
transfer or other disposition of any of the Collateral, or sell, transfer or
otherwise dispose of any of the Collateral at a time when there shall exist
either (A) an Event of Default, or (B) an "Event of Default," event of default
or other similar event under any Senior Debt Document (whether prior to, during
or after an insolvency proceeding), such sale, transfer or other disposition
shall be effective to transfer such Collateral free of any security interest,
lien, claim or encumbrance of the Trustee or the Holders in such Collateral and
the Trustee shall take such action and execute such documents as shall be
necessary to effect the foregoing. The sole right of the Trustee and the Holders
with respect to the Collateral shall be to receive the proceeds thereof after
the payment in full and in cash of all Senior Debt.
(d) The Trustee and each Holder acknowledges and agrees with the holders
of the Senior Debt that it shall have no right to require any holder of Senior
Debt to consult with, or solicit the approval of, the Trustee or any Holder in
connection with any sale, transfer or other disposition of any of the
Collateral, including, without limitation, any such transaction during a
proceeding of the type described in Section 11.2. The Trustee and each Holder
agrees (i) to take no action to challenge, restrain or prevent the consummation
of any such transaction, and (ii) to execute and deliver promptly to the holders
of the Senior Debt all agreements, instruments and other documents reasonably
requested by such holder of Senior Debt in connection with any such transaction.
-70-
(e) The Trustee and each Holder agrees that if the holders of the Senior
Debt amend, waive or otherwise modify, or grant any consent with respect to, any
provision (other than the amount due) of any security document constituting a
Senior Debt Document, the Trustee and the Holders of the Notes shall amend,
waive or otherwise modify, or grant its consent with respect to, the applicable
provision of the corresponding Note Document, and the Trustee shall execute and
deliver promptly upon request by the Holders of the Senior Debt an amendment,
waiver, consent or other modification, in form and substance similar to the
amendment, waiver, consent or modification executed and delivered by the Holders
of the Senior Debt, duly executed on behalf of the Holders of the Notes. In
addition, neither the Trustee nor the Holders will (i) direct the Company to
execute and deliver any agreement, instrument or other document, or to take, or
not to take, any action, in any case in connection with any Note Document, in a
manner inconsistent with this Agreement, or (ii) exercise any other rights or
remedies in respect of the Collateral (including, without limitation, any rights
in respect of insurance proceeds, any right to notify account debtors or
obligors under any receivables, or otherwise) in a manner inconsistent with this
Agreement.
SECTION 11.5. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes (except the Holders of Notes may receive
and retain Permitted Junior Securities) at a time when the Trustee or such
Holder, as applicable, has actual knowledge that such payment is prohibited by
Section 11.3 hereof, such payment shall be held by the Trustee or such Holder,
in trust for the benefit of, and shall be paid forthwith over and delivered,
upon written request, to, the holders of Senior Debt upon their written request
as their interests may appear or their Representative under this Indenture or
other agreement (if any) pursuant to which Senior Debt may have been issued, as
their respective interests may appear, for application to the payment for all
Obligations with respect to the Senior Debt remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.
SECTION 11.6. AMENDMENTS.
An amendment under Article 11 hereof may not make any change that adversely
affects the rights under this Article 11 of any holder of Senior Debt then
outstanding without the written consent of the holders of such Senior Debt (or
any group or representative thereof authorized to give consent). After an
amendment under this Article 11 becomes effective, the Company shall mail to
Holders and the holders of the Senior Debt a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair of affect the validity of an amendment under this
Article 11.
SECTION 11.7. SUBROGATION.
After all Senior Debt is paid in full and in cash and until the Notes are
paid in full, Holders of Notes shall be subrogated (equally and ratably with all
other Indebtedness
-71-
PARI PASSU with the Notes) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders of Notes have been applied to the payment of
Senior Debt. A distribution made under this Article 11 to holders of Senior Debt
that otherwise would have been made to Holders of Notes is not, as between the
Company and Holders, a payment by the Company on the Notes.
SECTION 11.8. RELATIVE RIGHTS.
This Article 11 defines the relative rights of Holders of Notes and holders
of Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms; or
(ii) affect the relative rights of Holders of Notes and creditors of
the Company other than their rights in relation to holders of Senior Debt.
The failure by the Company because of a provision in this Article 11 to pay
principal of or interest on a Note on the due date, shall not be construed as
preventing a Default or Event or Default. Nothing in this Article 11 shall have
any effect on the right of Holders or the Trustee to accelerate Notes.
SECTION 11.9. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.
SECTION 11.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 11, the Trustee and the Holders of Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders of Notes
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 11.
SECTION 11.11. RIGHT OF TRUSTEE AND PAYING AGENT.
-72-
Notwithstanding the provisions of this Article 11 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least two Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Notes to violate this Article 11. Only the Company, a Representative or the
holder of a majority of the outstanding Senior Debt (or agent thereof) may give
the notice. Nothing in this Article 11 shall impair the claims of, or payments
to, the Trustee under or pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 11.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Notes, by the Holder's acceptance thereof, authorizes and
directs the Trustee on such Xxxxxx's behalf to take such action as may be
necessary or appropriate to acknowledge and effectuate the subordination as
provided in this Article 11, and appoints the Trustee to act as such Xxxxxx's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.9 hereof at least 30 days before the expiration of the
time to file such claim, the Representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
SECTION 11.13. COVENANTS.
So long as any Senior Debt shall remain outstanding, neither the Trustee
nor any Holder will, without the prior written consent of the holders of the
Senior Debt:
(a) (i) cancel or otherwise discharge any obligation under the Notes or
reduce the amount secured by, or release, any security interest or other lien
securing any Obligation under the Notes (except upon payment in full and in cash
of the Senior Debt); (ii) subordinate any Obligation under the Notes to any
indebtedness of the Company other than the Senior Debt or (iii) subordinate any
security interest or other lien securing the Obligations under the Notes to any
security interest or other lien in favor or any person other than the holders of
the Senior Debt;
(b) permit the terms of the Notes to be amended or otherwise modified in
any respect reasonably likely to be adverse in any material respect to the
holders of the Senior Debt;
(c) (i) except to the extent permitted by Section 11.4, declare any or all
of the Obligations under the Notes due and payable prior to the date fixed
therefor or (ii) realize upon, or otherwise exercise any remedies with respect
to, any collateral securing any of the Obligations under the Notes; or
-73-
(d) in their capacity as Holders, commence, or join with any creditor
other than the holders of the Senior Debt in commencing, any proceeding referred
to in Section 11.2 hereof.
SECTION 11.14. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if the Trustee shall in
good faith mistakenly pay over or distribute to the Holders or to the Company or
to any other person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise. With respect to
the holders of Senior Debt, the Trustee undertakes to perform or to observe only
such of its covenants or obligations as are specifically set forth in this
Article and no implied covenants or obligations with respect to holders of
Senior Debt shall be read into this Indenture against the Trustee.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 12.2. NOTICES.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first-class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' addresses:
If to the Company:
Xxxxxxxxx Xxxxx Corporation
0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
If to Xxxxxxxxx Xxxxx (Canada):
Xxxxxxxxx Xxxxx (Canada) Corporation
0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
If to LS Holdings:
-74-
Xxxxx Xxxxxx Holdings Corp.
0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
If to the Trustee:
BNY Midwest Trust Company
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Corporate Trust Administration
Telecopier No.: (000) 000-0000
The Company or the Trustee by notice to the others may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; upon receipt, if deposited in the mail, postage prepaid; when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery. All notices and communications to the
Trustee shall be deemed to have been duly given only if actually received by a
Responsible Officer of the Trustee.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage pre-paid, to his address shown on the register kept by the
Registrar. 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 communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 12.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other Person shall have the protection of TIA
Section 312(c).
SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
-75-
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.5)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 12.5)
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
SECTION 12.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he 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 Person, such
condition or covenant has been complied with,
PROVIDED that with respect to matters of fact, an Opinion of Counsel may rely
upon an Officers' Certificate or a certificate of a public official.
SECTION 12.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.7. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
SECTION 12.8. NO RECOURSE AGAINST OTHERS.
-76-
No director, officer, employee, incorporator, shareholder or controlling
person of the Company or any Guarantor as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture, the Security
Documents, any Guaranty or for any claim based on, in respect of, or by reason
of such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release shall be part of the
consideration for the issuance of the Notes. Notwithstanding the foregoing,
nothing in this provision shall be construed as a waiver or release of any
claims under the Federal securities laws.
SECTION 12.9. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE RIGHTS OF THE
PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF
NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS
ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
-77-
SECTION 12.11. SUCCESSORS.
All agreements of the Company and any Guarantors in this Indenture and the
Notes shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 12.12. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.13. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.14. TABLE OF CONTENTS, HEADING, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
-78-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Indenture as of the date first written above.
XXXXXXXXX XXXXX CORPORATION
By: /s/ Xxx X. Xxxxxxxx
-----------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Executive Officer
XXXXX XXXXXX HOLDINGS CORP., as
a Guarantor
By: /s/ Xxx X. Xxxxxxxx
-----------------------------
Name: Xxx X Xxxxxxxx
Title: President and Chief Executive Officer
XXXXXXXXX XXXXX (CANADA)
CORPORATION, as a Guarantor
By: /s/ Xxx X. Xxxxxxxx
-----------------------------
Name: Xxx X Xxxxxxxx
Title: President and Chief Executive Officer
BNY MIDWEST TRUST COMPANY, as
Trustee
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
By: /s/ X. Xxxxxxxxx
-----------------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
-79-
By:
-----------------------------
Name:
Title:
-80-
EXHIBIT A
(Front of Security)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON
SECTION 1145 OF THE UNITED STATES BANKRUPTCY CODE. TO THE EXTENT THAT ANY
PORTION OF THIS NOTE IS HELD BY AN "AFFILIATE" OF THE COMPANY AS DEFINED BY
RULE 144 OF THE SECURITIES ACT, NEITHER SUCH PORTION OF THIS NOTE NOR ANY
INTEREST OR PARTICIPATION IN SUCH PORTION MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION.(1)
XXXXXXXXX XXXXX CORPORATION
10% SECURED SUBORDINATED NOTE
DUE 2007
NO. $_________________
CUSIP NO.
Xxxxxxxxx Xxxxx Corporation, a Delaware corporation (the "Company"), as
obligor, for value received promises to pay to ______________ or registered
assigns, the principal sum of [ ] Dollars on November 1, 2007. Interest
Payment Dates: January 1 and July 1 and on the maturity date. Record Dates:
December 15 and June 15 (whether or not a Business Day).
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
----------
(1) Legend only to be applied to Restricted Securities and to be promptly
removed upon delivery to the Company and its transfer agent of a letter from the
Holder's counsel stating that the Holder of such Note is no longer an
"affiliate" of the Company as defined by Rule 144 of the Securities Act.
-81-
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Dated:______________
XXXXXXXXX XXXXX CORPORATION
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Notes referred to
in the within-mentioned Indenture:
BNY MIDWEST TRUST COMPANY, as Trustee
By:
-----------------------------
Authorized Signature
Dated:______________
-82-
EXECUTION COPY
(Back of Security)
10% SECURED SUBORDINATED NOTE
DUE 2007
1. INTEREST. Xxxxxxxxx Xxxxx Corporation, a Delaware corporation (the
"Company"), as obligor, promises to pay interest on the principal amount of this
Note at the rate and in the manner specified below.
The Company shall pay interest on the principal amount of this Note, at
the rate of 10% per annum. The Company shall pay interest semi-annually on
January 1 and July 1 of each year, and on the maturity date, commencing on
January 1, 2003, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). On or prior to
November 1, 2005, the Company may elect, in the judgment of its Board of
Directors, to make all or a portion of each such interest payment in cash or
by issuing a new promissory note (a "PIK Note") in the form of this Note with
a principal amount, in each case, equal to the amount of interest that the
Holder of this Note was due on the Interest Payment Date and which the
Company has elected to pay by issuance of the PIK Note. If the Company
desires to make such interest payment by issuance of a PIK Note, the Company
shall follow the procedures set forth in Section 2.14 of the Indenture (as
defined below). Upon issuance of a PIK Note, such PIK Note shall be subject
to the terms of the Indenture and shall be treated as a "Note" thereunder.
Interest shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from November 1, 2002.
To the extent lawful, the Company shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the same rate.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the record date immediately preceding the Interest Payment
Date, even if such Notes are cancelled after such record date and on or before
such Interest Payment Date. The Holder must surrender this Note to a Paying
Agent to collect principal payments. The Company shall pay principal and
interest (subject to Section 1 above) in money of the United States that at the
time of payment is legal tender for payment of public and private debts. The
Company may pay principal and interest by check to a Holder's registered
address, PROVIDED, that all payments with respect to Global Notes and
certificated notes, the Holders of which have given wire transfer instructions
to the Company and the paying agent, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee shall act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar
without notice to any Holder. Subject to certain exceptions, the Company or any
of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as of
November 1, 2002 (the "Indenture") among the Company and BNY Midwest Trust
Company, as the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (the "TIA") (15 U.S. Code Sections 77aaa-77bbbb) as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA and thereafter as in effect on the date the Indenture is
so qualified. The Notes are subject to all such terms, and Holders are referred
to the Indenture and such act for a statement of such terms. The terms of the
Indenture shall govern any inconsistencies between the Indenture and the Notes.
Terms not otherwise defined herein shall have the meanings assigned in the
Indenture. The Notes are limited to $50,000,000 in aggregate principal amount,
subject to the issuance of PIK Notes in accordance with Section 1 hereof.
5. OPTIONAL REDEMPTION. At any time following the Issue Date and in
accordance with the procedures established by Article 3 of the Indenture, the
Company may, at its option, redeem the Notes, in whole or in part, by paying to
the holders thereof the outstanding principal amount of the Notes to be
redeemed, plus accrued and unpaid interest on such Notes.
6. MANDATORY REDEMPTION. There shall be no mandatory redemption of the
Notes.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1 and integral multiples of $1. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar and the Company need not exchange or
register the transfer (i) of any Note or portion of a Note selected for
redemption or (ii) of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
8. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes, subject to the provisions of the Indenture with
respect to the record dates for the payment of interest.
9. AMENDMENTS AND WAIVERS. Subject to certain exceptions set forth in the
Indenture, the Indenture or the Notes may be amended with the written consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and any existing Default or Event of Default (except certain
payment defaults) or compliance with any provision of the Indenture, the Notes
or the Security Documents may be waived with the consent of the Holders of a
majority in principal amount of the
-2-
then outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for Notes). Without the consent of any Holders, the
Indenture and the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for assumption of the Company's obligations
to the Holders in the case of a merger or consolidation, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to make
any change that would provide any additional rights or benefits to the Holders
of the Notes, or that does not adversely affect the legal rights under the
Indenture of any Holder, to release any Guarantee of the Notes permitted to be
released under the terms of the Indenture or to comply with requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA.
10. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare by written notice to the Company and the
Trustee all the Notes to be due and payable immediately, except that in the case
of an Event of Default arising from certain events of bankruptcy or insolvency,
all outstanding Notes become due and payable immediately without further action
or notice. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations set forth in
the Indenture, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Company
must furnish an annual compliance certificate to the Trustee.
11. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
12. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, shareholder or controlling person of the Company or Guarantor, as
such, shall have any liability for any obligations of the Company or any
Guarantor under the Notes or the Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each Holder by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes and the Guarantees.
Notwithstanding the foregoing, nothing in this provision shall be construed as a
waiver or release of any claims under the Federal securities laws.
13. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TENENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
-3-
15. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and 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 Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
16. GOVERNING LAW. This Note shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State of
New
York, without regard to principles of conflicts of law.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Xxxxxxxxx Xxxxx
Corporation, 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
President.
-4-
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
________________________________________________________________________________
Date:______________________
Your Signature:
-----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
----------
* NOTICE: The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agent Medallian Program (STAMP);
(2) The
New York Stock Exchange Medallian Program (MSP);
(3) The Stock Exchange Medallian Program (SEMP).
-5-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, as the case
may be, state the amount you elect to have purchased (if all, write "ALL"):
$______________
Date:_________________
Your Signature:
--------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
----------
* NOTICE: The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agent Medallian Program (STAMP);
(2) The New York Stock Exchange Medallian Program (MSP);
(3) The Stock Exchange Medallian Program (SEMP).
-6-
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(2)
The following exchanges of a part of this Global Note for Definitive Notes
have been made:
Principal Amount of
Amount of decrease Amount of Increase this Global Note
in Principal Amount in Principal Amount following such Signature of authorized
Date of Exchange of this Global Note of this Global Note decrease (or increase) officer or Trustee
----------
(2) This paragraph should be included only if the Note is issued in global
form.
-7-
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 10% Secured Subordinated Notes due 2007 (the "Notes") of Xxxxxxxxx Xxxxx
Corporation
This Certificate relates to $______ principal amount of Notes held in * / /
book-entry or * / / definitive form by _____________________ (the "Transferor").
The Transferor, by written order, has requested the Trustee:
/ / to deliver in exchange for its beneficial interest in the Global
Note held by the depository, a Note or Notes in definitive,
registered form of authorized denominations and an aggregate
principal amount equal to its beneficial interest in such Global
Note (or the portion thereof indicated above); or
/ / to exchange or register the transfer of a Note or Notes. In
connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above captioned Notes and, the transfer
of this Note does not require registration under the Securities Act
of 1933, as amended (the "Securities Act") because such Note:
/ / is being acquired for the Transferor's own account, without
transfer;
/ / is being transferred pursuant to an effective registration
statement;
/ / is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), in reliance on such
Rule 144A;
/ / is being transferred to an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.**
/ / is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;***
/ / is being transferred pursuant to Rule 144 under the Securities
Act;*** or
/ / is being transferred pursuant to another exemption from the
registration requirements of the Securities Act (explain: _________
___________________________________________________________________
_____________).***
[INSERT NAME OF TRANSFEROR]
By:
--------------------------
Date:____________________
* Check applicable box.
** If this box is checked, this certificate must be accompanied by a
transferee letter of representations.
*** If this box is checked, this certificate must be accompanied by an
opinion
-8-
of counsel to the effect that such transfer is in compliance with the
Securities Act.
-9-
EXHIBIT C
GUARANTY
For good and valuable consideration received from the Company by the
undersigned (hereinafter referred to as the "Guarantors," which term includes
any successor or additional Guarantors), the receipt and sufficiency of which is
hereby acknowledged, subject to Section 10.8 of the Indenture, each Guarantor,
jointly and severally, hereby unconditionally guarantees, irrespective of the
validity or enforceability of the Indenture, the Notes, the Security Documents
or the Obligations thereunder, (a) the due and punctual payment of the principal
and premium, if any, of and interest on the Notes (including, without
limitation, interest after the filing of a petition initiating any proceedings
referred to in Sections 6.1(9) or (10) of the Indenture), whether at maturity or
on an interest payment date, by acceleration, call for redemption or otherwise,
(b) the due and punctual payment of interest on the overdue principal and
premium, if any, of and interest, if any, on the Notes, if lawful, (c) the due
and punctual payment and performance of all other Obligations under the
Indenture, the Notes or the Security Documents, all in accordance with the terms
set forth in the Indenture, the Notes and the Security Documents, and (d) in
case of any extension of time of payment or renewal of any Notes or any of such
other Obligations, the due and punctual payment or performance thereof in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
Notwithstanding anything to the contrary contained herein, this Guaranty
is, and at all times shall be, subject to the subordination provisions of
Article 11 of the Indenture.
No director, officer, employee, incorporator, stockholder or controlling
person of the Guarantor, as such, shall have any liability under this Guaranty
for any obligations of the Guarantor under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability.
-10-
EXECUTION COPY
SCHEDULE 1.1
SITE ADDRESS CITY COUNTY STATE
NO.
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
None 1121-1135 X. Xxx Xxxxx Chicago Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
None 1137 X. Xxxxxxx Chicago Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
103 1101 X. Xxxxxxx Chicago Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
190 5543 S. Harlem Chicago Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
201 0000 X. 00xx Xxxxxx Oak Lawn Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
203 00000 X. Xxxxxx Oak Lawn Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
208 14701 X. Xxxxxx Midlothian Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
211 1001 E. 162nd Street South Holland Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
213 17245 X. Xxxxxxxx Lansing Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
216 18101 X. Xxxxxxx Homewood Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
239 3536 X. Xxxxxxxx Skokie Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
240 00000 Xxxxxx Xxxx. Xxxxxx Xxxx IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
248 7001 X. Xxxxxxx Xxxxxxxxxxx Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
277 000 X. Xxxx Xxxxxx Mt. Prospect Cook IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
388 0000 Xxxxx Xxxxxx Downers Grove DuPage IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
395 107 X. Xxxxx Xxxxxx Xxxxx Stream DuPage IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
396 000 X. Xxxx Xxxxxx Xxxxxxx DuPage IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
397 000 X. Xxxxxx Xxxx Xxxx Wooddale DuPage IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
398 000 Xxxxxxxxx Xxxx Xxxx Xxxxx DuPage IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
410 402 X. Xxxx Xxxxxxxxx Champaign IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
448 000 Xxxxxxxx Xxxxxx Crystal Lake XxXxxxx IL
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
461 000 X. Xxxx Xxxxxx Xxxxxx Xxxx XX
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
530 7327 Little River Turnpike Annandale Fairfax VA
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
613 8045 Broadway Merrillvillle Lake IN
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
614 0000 Xxxxx Xxxx Highland Lake IN
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
617 102 Highway 20 Michigan City XxXxxxx IN
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
816 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx Xxxxxxxxxxxx XX
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
None 1694 Winchester Road Bensalem Bucks PA
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
841 9 Kings Highway West Haddonfield Camden NJ
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
875 501 W. 14 Mile Road Madison Heights Oakland MI
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
878 4037 W. Saginaw Lansing Xxxxx MI
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
SITE ADDRESS CITY COUNTY STATE
NO.
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
000 0000 00xx Xxxxxx SE Grand Rapids Kent MI
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
890 865 Capital, SW Battle Creek Xxxxxxx MI
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
894 6012 X. Xxxxxxxxx Portage Kalamazoo MI
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
895 0000 X. Xxxxx Xxxx St. Xxxxxx Xxxxxxx XX
---------------- --------------------------------------- ------------------- ------------------------------ -----------------------
35 Owned Sites: IL = 22 Sites = 5 Counties VA = 1 Site = 1 County
MI = 6 Sites = 6 Counties NJ = 1 Site = 1 County
IN = 3 Sites = 2 Counties
PA = 2 Sites = 2 Counties
-2-
