Exhibit 4.1
EXECUTION COPY
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VOLUME SERVICES AMERICA, INC.
11 1/4% Senior Subordinated Notes due 2009
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INDENTURE
Dated as of March 4, 1999
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NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
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TABLE OF CONTENTS
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions ..............................................................................1
SECTION 1.02. Other Definitions........................................................................20
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................................20
SECTION 1.04. Rules of Construction....................................................................21
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series.................................................22
SECTION 2.02. Form and Dating..........................................................................23
SECTION 2.03. Execution and Authentication.............................................................23
SECTION 2.04. Registrar and Paying Agent...............................................................23
SECTION 2.05. Paying Agent To Hold Money in Trust......................................................24
SECTION 2.06. Securityholder Lists.....................................................................24
SECTION 2.07. Transfer and Exchange....................................................................25
SECTION 2.08. Replacement Securities...................................................................25
SECTION 2.09. Outstanding Securities...................................................................26
SECTION 2.10. Temporary Securities.....................................................................26
SECTION 2.11. Cancelation .............................................................................26
SECTION 2.12. CUSIP Numbers............................................................................26
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee.......................................................................27
SECTION 3.02. Selection of Securities to Be Redeemed...................................................27
SECTION 3.03. Notice of Redemption.....................................................................27
SECTION 3.04. Effect of Notice of Redemption...........................................................28
SECTION 3.05. Deposit of Redemption Price..............................................................28
SECTION 3.06. Securities Redeemed in Part..............................................................29
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ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities....................................................................29
SECTION 4.02. Reports and Other Information............................................................29
SECTION 4.03. Limitations on Incurrence of Indebtedness and Issuance
of Disqualified Stock and Preferred Stock....................................30
SECTION 4.04. Limitation on Restricted Payments........................................................33
SECTION 4.05. Dividend and Other Payment Restrictions Affecting
Subsidiaries.................................................................38
SECTION 4.06. Asset Sales .............................................................................39
SECTION 4.07. Transactions with Affiliates.............................................................42
SECTION 4.08. Liens .............................................................................43
SECTION 4.09. Change of Control........................................................................43
SECTION 4.10. Compliance Certificate...................................................................45
SECTION 4.11. Further Instruments and Acts.............................................................45
SECTION 4.12. Future Guarantors........................................................................45
ARTICLE 5
Successor Company
SECTION 5.01. Merger, Consolidation or Sale of All or Substantially All
Assets.......................................................................45
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default........................................................................47
SECTION 6.02. Acceleration.............................................................................49
SECTION 6.03. Other Remedies...........................................................................49
SECTION 6.04. Waiver of Past Defaults..................................................................49
SECTION 6.05. Control by Majority......................................................................50
SECTION 6.06. Limitation on Suits......................................................................50
SECTION 6.07. Rights of Holders to Receive Payment.....................................................51
SECTION 6.08. Collection Suit by Trustee...............................................................51
SECTION 6.09. Trustee May File Proofs of Claim.........................................................51
SECTION 6.10. Priorities .............................................................................51
SECTION 6.11. Undertaking for Costs....................................................................51
SECTION 6.12. Waiver of Stay or Extension Laws.........................................................52
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ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee........................................................................52
SECTION 7.02. Rights of Trustee........................................................................53
SECTION 7.03. Individual Rights of Trustee.............................................................54
SECTION 7.04. Trustee's Disclaimer.....................................................................54
SECTION 7.05. Notice of Defaults.......................................................................54
SECTION 7.06. Reports by Trustee to Holders............................................................54
SECTION 7.07. Compensation and Indemnity...............................................................54
SECTION 7.08. Replacement of Trustee...................................................................55
SECTION 7.09. Successor Trustee by Merger..............................................................56
SECTION 7.10. Eligibility; Disqualification............................................................56
SECTION 7.11. Preferential Collection of Claims Against Company........................................56
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.........................................57
SECTION 8.02. Conditions to Defeasance.................................................................58
SECTION 8.03. Application of Trust Money...............................................................59
SECTION 8.04. Repayment to Company.....................................................................59
SECTION 8.05. Indemnity for Government Obligations.....................................................59
SECTION 8.06. Reinstatement............................................................................59
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders...............................................................60
SECTION 9.02. With Consent of Holders..................................................................61
SECTION 9.03. Compliance with Trust Indenture Act......................................................62
SECTION 9.04. Revocation and Effect of Consents and Waivers............................................62
SECTION 9.05. Notation on or Exchange of Securities....................................................62
SECTION 9.06. Trustee To Sign Amendments...............................................................62
SECTION 9.07. Payment for Consent......................................................................63
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ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate................................................................63
SECTION 10.02. Liquidation, Dissolution, Bankruptcy....................................................63
SECTION 10.03. Default on Senior Indebtedness..........................................................63
SECTION 10.04. Acceleration of Payment of Securities...................................................64
SECTION 10.05. When Distribution Must Be Paid Over.....................................................65
SECTION 10.06. Subrogation.............................................................................65
SECTION 10.07. Relative Rights.........................................................................65
SECTION 10.08. Subordination May Not Be Impaired by Company............................................65
SECTION 10.09. Rights of Trustee and Paying Agent......................................................65
SECTION 10.10. Distribution or Notice to Representative................................................66
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit
Right To Accelerate..........................................................66
SECTION 10.12. Trust Moneys Not Subordinated...........................................................66
SECTION 10.13. Trustee Entitled To Rely................................................................66
SECTION 10.14. Trustee To Effectuate Subordination.....................................................66
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness.................................................................67
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions.....................................................67
SECTION 10.17. Trustee's Compensation Not Prejudiced...................................................67
SECTION 10.18. Defeassance ............................................................................67
ARTICLE 11
Guarantees
SECTION 11.01. Guarantees .............................................................................67
SECTION 11.02. Limitation on Liability.................................................................69
SECTION 11.03. Successors and Assigns..................................................................70
SECTION 11.04. No Waiver .............................................................................70
SECTION 11.05. Modification............................................................................70
SECTION 11.06. Execution of Supplemental Indenture for Future
Guarantors...................................................................70
ARTICLE 12
Subordination of the Guarantees
SECTION 12.01. Agreement To Subordinate................................................................71
SECTION 12.02. Liquidation, Dissolution, Bankruptcy....................................................71
SECTION 12.03. Default on Designated Senior Indebtedness of a
Guarantor....................................................................71
SECTION 12.04. Demand for Payment......................................................................72
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SECTION 12.05. When Distribution Must Be Paid Over.....................................................72
SECTION 12.06. Subrogation.............................................................................72
SECTION 12.07. Relative Rights.........................................................................73
SECTION 12.08. Subordination May Not Be Impaired by a Guarantor........................................73
SECTION 12.09. Rights of Trustee and Paying Agent......................................................73
SECTION 12.10. Distribution or Notice to Representative................................................73
SECTION 12.11. Article 12 Not To Prevent Events of Default or Limit
Right To Accelerate..........................................................73
SECTION 12.12. Trustee Entitled To Rely................................................................74
SECTION 12.13. Trustee To Effectuate Subordination.....................................................74
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Guarantor..................................................74
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Guarantor on Subordination Provisions........................................74
SECTION 12.16. Defeasance .............................................................................74
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls............................................................75
SECTION 13.02. Notices .............................................................................75
SECTION 13.03. Communication by Holders with Other Holders.............................................75
SECTION 13.04. Certificate and Opinion as to Conditions Precedent......................................76
SECTION 13.05. Statements Required in Certificate or Opinion...........................................76
SECTION 13.06. When Securities Disregarded.............................................................76
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar............................................76
SECTION 13.08. Legal Holidays..........................................................................76
SECTION 13.09. GOVERNING LAW...........................................................................77
SECTION 13.10. No Recourse Against Others..............................................................77
SECTION 13.11. Successors .............................................................................77
SECTION 13.12. Multiple Originals......................................................................77
SECTION 13.13. Table of Contents; Headings.............................................................77
Appendix A - Provisions Relating to Original Securities, Additional
Securities, Exchange Securities and Private
Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
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INDENTURE dated as of March 4, 1999, among
VOLUME SERVICES AMERICA, INC., a Delaware corporation
(the "Company"), VOLUME SERVICES AMERICA HOLDINGS,
INC. ("Volume Holdings"), each subsidiary of the
Company listed on the signature pages hereto and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (i) the
Company's 11 1/4% Senior Subordinated Notes due 2009 issued on the date hereof
(the "Original Securities"), (ii) any Additional Securities (as defined herein)
that may be issued on any Issue Date (all such Securities in clauses (i) and
(ii) being referred to collectively as the "Initial Securities"), (iii) if and
when issued as provided in a Registration Agreement (as defined in Appendix A
hereto (the "Appendix")), the Company's 11 1/4% Senior Subordinated Notes due
2009 issued in a Registered Exchange Offer (as defined in the Appendix) in
exchange for any Initial Securities (the "Exchange Securities") and (iv) if and
when issued as provided in a Registration Agreement, the Private Exchange
Securities (as defined in the Appendix, and together with the Initial Securities
and any Exchange Securities issued hereunder, the "Securities") issued in a
Private Exchange (as defined in the Appendix). Except as otherwise provided
herein, the Securities shall be limited to $200,000,000 in aggregate principal
amount outstanding, of which $100,000,000 in aggregate principal amount shall be
initially issued on the date hereof. Subject to the conditions and in compliance
with the covenants set forth herein, the Company may issue up to $100,000,000
aggregate principal amount of Additional Securities.
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Restricted Subsidiary of such
specified Person and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person, in each case, other than Indebtedness
Incurred as consideration in, in contemplation of, or to provide all or any
portion of the funds or credit support utilized to consummate, the transaction
or series of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was otherwise acquired by such Person, or such
asset was acquired by such Person, as applicable.
"Additional Securities" means up to $100,000,000 aggregate
principal amount of 11 1/4% Senior Subordinated Notes due 2009 issued under the
terms of this Indenture subsequent to the Closing Date.
"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, means the possession, directly or indirectly, of
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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. For purposes of Section 4.06 and 4.07 only, "Affiliate" shall also
mean any beneficial owner of shares representing 10% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or Volume
Holdings or of rights or warrants to purchase such Voting Stock (whether or not
currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Applicable Premium" means with respect to a Security at any
redemption date, the greater of (i) 1.0% of the principal amount of such
Security or (ii) the excess of (A) the present value of (1) the redemption price
of such Security at March 1, 2004 (such redemption price being set forth in
paragraph 5 of the Security) plus (2) all required interest payments due on such
Security through March 1, 2004, computed using a discount rate equal to the
Treasury Rate plus 50 basis points, over (B) the then-outstanding principal
amount of such Security.
"Asset Sale" means (i) the sale, conveyance, transfer or other
disposition (whether in a single transaction or a series of related
transactions) of property or assets (including by way of a Sale/Leaseback
Transaction) of the Company or any Restricted Subsidiary (each referred to in
this definition as a "disposition") or (ii) the issuance or sale of Equity
Interests of any Restricted Subsidiary (other than to the Company or another
Restricted Subsidiary) (whether in a single transaction or a series of related
transactions), in each case other than: (a) a disposition of Cash Equivalents or
Investment Grade Securities or obsolete or worn out equipment in the ordinary
course of business; (b) the disposition of all or substantially all of the
assets of the Company in a manner permitted pursuant to Section 5.01 or any
disposition that constitutes a Change of Control; (c) any Restricted Payment or
Permitted Investment that is permitted to be made, and is made, under Section
4.04; (d) any disposition of assets with an aggregate Fair Market Value of less
than $2,000,000; (e) any disposition of property or assets by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Restricted Subsidiary; (f) any exchange of like property pursuant to Section
1031 of the Internal Revenue Code of 1986, as amended, for use in a Similar
Business; (g) sales of assets received by the Company upon the foreclosure on a
Lien; (h) any sale of Equity Interests in, or Indebtedness or other securities
of, an Unrestricted Subsidiary; and (i) sales of inventory in the ordinary
course of business consistent with past practices and sales of equipment upon
termination of a contract with a client entered into in the ordinary course of
business pursuant to the terms of such contract.
"Bank Indebtedness" means any and all amounts payable under or
in respect of the Credit Agreement, the other Senior Credit Documents and any
Refinancing Indebtedness with respect thereto, as amended from time to time,
including principal, premium (if any), interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not a claim for post-filing interest is allowed in
such proceedings), fees, charges, expenses, reimbursement obligations,
guarantees and all other amounts payable thereunder or in respect thereof.
"Blackstone" means Blackstone Capital Partners II Merchant
Banking Fund L.P. and its Affiliates.
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"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in New York State are authorized or
required by law to close.
"Capitalized Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized and
reflected as a liability on a balance sheet (excluding the footnotes thereto) in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited), and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) U.S. dollars and foreign currency
exchanged into U.S. dollars within 180 days, (ii) securities issued or directly
and fully guaranteed or insured by the United States government or any agency or
instrumentality thereof, (iii) certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers' acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any commercial bank having capital
and surplus in excess of $500,000,000 and whose long-term debt is rated "A" or
the equivalent thereof by Moody's or S&P, (iv) repurchase obligations for
underlying securities of the types described in clauses (ii) and (iii) above
entered into with any financial institution meeting the qualifications specified
in clause (iii) above, (v) commercial paper issued by a corporation (other than
an Affiliate of the Company) rated at least "A-2" or the equivalent thereof by
Moody's or S&P and in each case maturing within one year after the date of
acquisition, (vi) investment funds investing at least 95% of their assets in
securities of the types described in clauses (i) through (v) above, (vii)
readily marketable direct obligations issued by any state of the United States
of America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Moody's or S&P, and (viii) Indebtedness
or preferred stock issued by Persons (other than Blackstone, GE Capital or their
Affiliates) with a rating of "A" or higher from S&P or "A-2" or higher from
Moody's.
"Change of Control" means the occurrence of any of the
following events:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all the assets of the Company and
its Subsidiaries, taken as a whole, to a Person other than the
Permitted Holders;
(ii)(A) the Company becomes aware (by way of a report or any
other filing pursuant to Section 13(d) of the Exchange Act, proxy,
vote, written notice or otherwise) of the acquisition by any Person or
group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group
acting for the purpose of acquiring, holding or disposing of securities
(within the meaning of Rule 13d-5(b)(1) under the
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Exchange Act), other than the Permitted Holders, in a single
transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or
any successor provision), of 35% or more of the total voting power of
the Voting Stock of the Company or Volume Holdings and (B) the
Permitted Holders beneficially own (as defined above), directly or
indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company or Volume Holdings, as
applicable, than such other Person or group and do not have the right
or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors; or
(iii) during any one year period, individuals who at the
beginning of such period constituted the board of directors of the
Company or Volume Holdings (together with any new directors whose
election by such board of directors or whose nomination for election by
the shareholders of the Company or Volume Holdings, as applicable, was
approved by a vote of a majority of the directors of the Company or
Volume Holdings, as applicable, then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of the
Company or Volume Holdings, as applicable, then in office.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Consolidated Depreciation and Amortization Expense" means
with respect to any Person for any period, the total amount of depreciation and
amortization expense (excluding amortization of deferred financing fees) of such
Person and its Restricted Subsidiaries for such period on a consolidated basis
and otherwise determined in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum, without duplication, of: (i) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
to the extent such expense was deducted in computing Consolidated Net Income
(including amortization of original issue discount, the interest component of
Capitalized Lease Obligations (or any financing lease which has substantially
the same economic effect as a Capitalized Lease Obligation) and net payments and
receipts (if any) pursuant to Hedging Obligations and excluding amortization of
deferred financing fees), (ii) consolidated capitalized interest of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued and
(iii) the earned discount or yield with respect to the sale of receivables.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis; provided,
however, that (i) any net after-tax
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extraordinary gains or losses (less all fees and expenses relating thereto)
shall be excluded, (ii) any increase in amortization or depreciation resulting
from purchase accounting in relation to any acquisition that is consummated
after the Closing Date, net of taxes, shall be excluded, (iii) the Net Income
for such period shall not include the cumulative effect of a change in
accounting principles during such period, (iv) any net after-tax income or loss
from discontinued operations and any net after-tax gains or losses on disposal
of discontinued operations shall be excluded, (v) any net after-tax gains or
losses (less all fees and expenses relating thereto) attributable to asset
dispositions other than in the ordinary course of business (as determined in
good faith by the Board of Directors) shall be excluded, (vi) the Net Income for
such period of any Person that is not a Subsidiary of such Person, or is an
Unrestricted Subsidiary, or that is accounted for by the equity method of
accounting, shall be included only to the extent of the amount of dividends or
distributions or other payments paid in cash (or to the extent converted into
cash) to the referent Person or a Restricted Subsidiary thereof in respect of
such period, (vii) the Net Income of any Person acquired in a pooling of
interests transaction shall not be included for any period prior to the date of
such acquisition, and (viii) the Net Income for such period of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary of its Net
Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders, unless such restrictions with
respect to the payment of dividends or in similar distributions have been
legally waived; provided that the net loss of any such Restricted Subsidiary
shall be included. Notwithstanding the foregoing, for the purpose of Section
4.04 only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets from Unrestricted
Subsidiaries to the Company or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments
permitted under clauses (a)(3)(D) and (a)(3)(E) of Section 4.04.
"Contribution Indebtedness" means Indebtedness of the Company
in an aggregate principal amount not greater than the amount of all Specified
Cash Contributions, provided that such Contribution Indebtedness (i) has a
Stated Maturity later than the Stated Maturity of the Securities, (ii) is
Incurred substantially concurrently with such Specified Cash Contributions, and
(iii) is so designated as Contribution Indebtedness pursuant to an Officers'
Certificate on the Incurrence date thereof.
"Credit Agreement" means the credit agreement dated as of
December 3, 1998, as amended, restated, supplemented, waived, replaced,
restructured, repaid, refunded, refinanced or otherwise modified from time to
time, including any agreement extending the maturity thereof or otherwise
restructuring all or any portion of the Indebtedness under such agreement
(except to the extent that any such amendment, restatement, supplement, waiver,
replacement, refunding, refinancing or other modification thereto would be
prohibited by the terms of this Indenture, unless otherwise agreed to by the
Holders of at least a majority in aggregate principal amount of Securities at
the time outstanding), among the Company, Volume Holdings, the financial
institutions named therein and The Chase Manhattan Bank, as Administrative
Agent.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
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"Designated Noncash Consideration" means the Fair Market Value
of noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation, less the amount of Cash Equivalents received
in connection with a subsequent sale of such Designated Noncash Consideration.
"Designated Preferred Stock" means Preferred Stock of the
Company (other than Disqualified Stock) that is issued for cash (other than to a
Subsidiary of the Company or an employee stock ownership plan or trust
established by the Company or any of its Subsidiaries) and is so designated as
Designated Preferred Stock, pursuant to an Officers' Certificate, on the
issuance date thereof, the cash proceeds of which are excluded from the
calculation set forth in Section 4.04(a)(3).
"Designated Senior Indebtedness" means, with respect to the
Company or a Guarantor, (i) the Bank Indebtedness and (ii) any other Senior
Indebtedness of the Company or such Guarantor which, at the date of
determination, has an aggregate principal amount outstanding of, or under which,
at the date of determination, the holders thereof, are committed to lend up to,
at least $15,000,000 and is specifically designated by the Company or such
Guarantor in the instrument evidencing or governing such Senior Indebtedness as
"Designated Senior Indebtedness" for purposes of this Indenture.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is redeemable or
exchangeable), or upon the happening of any event, (i) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, (ii) is
convertible or exchangeable for Indebtedness or Disqualified Stock, or (iii) is
redeemable at the option of the holder thereof, in whole or in part, in each
case prior to the first anniversary of the maturity date of the Securities;
provided, however, that only the portion of Capital Stock which so matures or is
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at
the option of the holder thereof prior to such first anniversary shall be deemed
to be Disqualified Stock; provided further, however, that if such Capital Stock
is issued to any employee or to any plan for the benefit of employees of the
Company or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee's termination, death or
disability.
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus, without
duplication, (i) provision for taxes based on income or profits of such Person
for such period deducted in computing Consolidated Net Income, plus (ii)
Consolidated Interest Expense of such Person for such period to the extent the
same was deducted in computing Consolidated Net Income, plus (iii) Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent such Consolidated Depreciation and Amortization Expense was deducted in
computing Consolidated Net Income, plus (iv) any non-recurring fees, expenses or
charges related to any Equity Offering, Permitted Investment, acquisition or
Indebtedness permitted to be Incurred by this Indenture (in each case, whether
or not successful), including any such fees, expenses or charges related to the
Transactions (including fees to Blackstone), deducted in such period in
computing Consolidated Net Income, plus (v) the amount of any nonrecurring
charges related to
7
client contract terminations, one-time severance costs related to the
Acquisition or one-time severance costs incurred in connection with acquisitions
consummated after the Closing Date deducted in such period in computing
Consolidated Net Income, plus (vi) any other noncash charges reducing
Consolidated Net Income for such period (excluding any such charge which
consists of or requires an accrual of, or cash reserve for, anticipated cash
charges for any future period), plus (vii) the amount of annual management,
monitoring, consulting and advisory fees and related expenses paid to Blackstone
and GE Capital deducted in such period in computing Consolidated Net Income in
an amount not to exceed $1,500,000 during any fiscal year, less, without
duplication, (viii) noncash items increasing Consolidated Net Income of such
Person for such period (excluding any items which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period).
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization of, a Subsidiary of the
Company shall be added to Consolidated Net Income to compute EBITDA only to the
extent (and in the same proportion) that the Net Income of such Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Subsidiary or its stockholders.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of common
stock or Preferred Stock of the Company or Volume Holdings (other than
Disqualified Stock), other than (i) public offerings with respect to the
Company's common stock registered on Form S-8 and (ii) any such public or
private sale that constitutes an Excluded Contribution or a Specified Cash
Contribution.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Exchange Offer Registration Statement" has the meaning
assigned to it in the Registration Agreement dated the date hereof.
"Excluded Contributions" means the net cash proceeds (other
than Specified Cash Contributions) received by the Company after the Closing
Date from (i) contributions to its common equity capital and (ii) the sale
(other than to a Subsidiary of the Company or to any Company or Subsidiary
management equity plan or stock option plan or any other management or employee
benefit plan or agreement) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Company, in each case designated as Excluded
Contributions pursuant to an Officers' Certificate executed by an Officer of the
Company, the cash proceeds of which are excluded from the calculation set forth
in Section 4.04(a)(3).
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a
8
willing seller and a willing and able buyer, neither of whom is under undue
pressure or compulsion to complete the transaction.
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any period, the ratio of EBITDA of such Person for such period to the
Fixed Charges of such Person for such period. In the event that the Company or
any of its Restricted Subsidiaries Incurs or redeems any Indebtedness (other
than in the case of revolving credit borrowings, in which case interest expense
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period) or issues or redeems Preferred Stock subsequent to
the commencement of the period for which the Fixed Charge Coverage Ratio is
being calculated but prior to the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such Incurrence or
redemption of Indebtedness, or such issuance or redemption of Preferred Stock,
as if the same had occurred at the beginning of the applicable four-quarter
period. For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP), in each case with respect to an
operating unit of a business, that have been made by the Company or any of its
Restricted Subsidiaries during the four-quarter reference period or subsequent
to such reference period and on or prior to or simultaneously with the
Calculation Date shall be calculated on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, discontinued operations, mergers and
consolidations (and the reduction of any associated fixed charge obligations and
the change in EBITDA resulting therefrom) had occurred on the first day of the
four-quarter reference period. If since the beginning of such period any Person
(that subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall
have made any Investment, acquisition, disposition, discontinued operation,
merger or consolidation, in each case with respect to an operating unit of a
business, that would have required adjustment pursuant to this definition, then
the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
thereto for such period as if such Investment, acquisition, disposition,
discontinued operation, merger or consolidation had occurred at the beginning of
the applicable four-quarter period. For purposes of this definition, whenever
pro forma effect is to be given to any transaction, the pro forma calculations
shall be made in good faith by a responsible financial or accounting officer of
the Company. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligations applicable to
such Indebtedness if such Hedging Obligation has a remaining term in excess of
12 months). Interest on a Capitalized Lease Obligation shall be deemed to accrue
at an interest rate reasonably determined by a responsible financial or
accounting officer of the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period.
Interest on Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Company
may designate. Any such pro forma calculation may include adjustments
appropriate, in the reasonable determination of the Company as set forth in
9
an Officers' Certificate, to reflect operating expense reductions reasonably
expected to result from any acquisition or merger.
"Fixed Charges" means, with respect to any Person for any
period, the sum of (i) Consolidated Interest Expense of such Person for such
period and (ii) all cash dividend payments (excluding items eliminated in
consolidation) on any series of Preferred Stock or Disqualified Stock of such
Person and its Subsidiaries.
"Foreign Subsidiary" means any Restricted Subsidiary not
organized or existing under the laws of the United States of America or any
state or territory thereof.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Closing Date. For the
purposes of this Indenture, the term "consolidated" with respect to any Person
shall mean such Person consolidated with its Restricted Subsidiaries, and shall
not include any Unrestricted Subsidiary, but the interest of such Person in an
Unrestricted Subsidiary shall be accounted for as an Investment.
"GE Capital" means General Electric Capital Corporation and
its Affiliates.
"Government Securities" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in each
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such Government
Securities or a specific payment of principal of or interest on any such
Government Securities held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Securities or the specific payment of principal of or
interest on the Government Securities evidenced by such depository receipt.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness or other obligations.
"Guarantee" means any guarantee of the obligations of the
Company under this Indenture and the Securities by any Person in accordance with
the provisions of this Indenture.
10
"Guarantor" means any Person that Incurs a Guarantee; provided
that upon the release or discharge of such Person from its Guarantee in
accordance with this Indenture, such Person ceases to be a Guarantor.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange, interest rates or commodity prices.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, assume, guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Person at the time it becomes a Subsidiary.
"Indebtedness" means, with respect to any Person, (i) the
principal and premium (if any) of any indebtedness of such Person, whether or
not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes,
debentures or similar instruments or letters of credit or bankers' acceptances
(or, without duplication, reimbursement agreements in respect thereof), (c)
representing the deferred and unpaid purchase price of any property, except any
such balance that constitutes a trade payable or similar obligation to a trade
creditor due within six months from the date on which it is Incurred, in each
case Incurred in the ordinary course of business, which purchase price is due
more than six months after the date of placing the property in service or taking
delivery and title thereto, (d) in respect of Capitalized Lease Obligations, or
(e) representing any Hedging Obligations, if and to the extent that any of the
foregoing Indebtedness (other than letters of credit and Hedging Obligations)
would appear as a liability on a balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP, (ii) to the extent not
otherwise included, any obligation of such Person to be liable for, or to pay,
as obligor, guarantor or otherwise, on the Indebtedness of another Person (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), and (iii) to the extent not otherwise included,
Indebtedness of another Person secured by a Lien on any asset owned by such
Person (whether or not such Indebtedness is assumed by such Person); provided,
however, that the amount of such Indebtedness will be the lesser of (a) the Fair
Market Value of such asset at such date of determination and (b) the amount of
such Indebtedness of such other Person; provided, further, that any obligation
of the Company or any Restricted Subsidiary in respect of (i) minimum guaranteed
commissions, or other similar payments, to clients or (ii) indemnification
obligations to clients, in each case pursuant to contracts to provide services
to clients entered into in the ordinary course of business shall be deemed not
to constitute Indebtedness.
"Indenture" means this Indenture as amended or supplemented
from time to time.
11
"Independent Financial Advisor" means an accounting, appraisal
or investment banking firm or consultant to Persons engaged in a Similar
Business, in each case of nationally recognized standing that is, in the good
faith determination of the Company, qualified to perform the task for which it
has been engaged.
"Investment Grade Securities" means (i) securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof (other than Cash Equivalents), (ii) debt
securities or debt instruments (other than those issued by Blackstone, GE
Capital or any of their Affiliates) with a rating of BBB- or higher by S&P or
Baa3 or higher by Moody's or the equivalent of such rating by such rating
organization, or if no rating of S&P or Moody's then exists, the equivalent of
such rating by any other nationally recognized securities rating agency, but
excluding any debt securities or instruments constituting loans or advances
among the Company and its Subsidiaries, and (iii) investments in any fund that
invests exclusively in investments of the type described in clauses (i) and (ii)
which fund may also hold immaterial amounts of cash pending investment and/or
distribution.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the form
of loans (including guarantees), advances or capital contributions (excluding
accounts receivable, trade credit and advances to customers and commission,
travel and similar advances to officers, employees and consultants made in the
ordinary course of business), purchases or other acquisitions for consideration
(including agreements providing for the adjustment of purchase price) of
Indebtedness, Equity Interests or other securities issued by any other Person
and investments that are required by GAAP to be classified on the balance sheet
of the Company in the same manner as the other investments included in this
definition to the extent such transactions involve the transfer of cash or other
property. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04, (i) "Investments" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair Market Value of the
net assets of a Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) the Company's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"Issue Date", with respect to any Initial Securities, means
the date on which the Initial Securities are originally issued.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction); provided that in no event shall an operating lease be deemed to
constitute a Lien.
12
"liquidated damages" means any liquidated damages payable
under a Registration Agreement.
"Management Group" means the group consisting of the
directors, executive officers and other personnel of the Company and Volume
Holdings on the Closing Date.
"Moody's" means Moody's Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received in respect of or upon the sale
or other disposition of any Designated Noncash Consideration received in any
Asset Sale and any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding the assumption by the acquiring person of
Indebtedness relating to the disposed assets or other considerations received in
any other noncash form), net of the direct costs relating to such Asset Sale and
the sale or disposition of such Designated Noncash Consideration (including,
without limitation, legal, accounting and investment banking fees, and brokerage
and sales commissions), and any relocation expenses Incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements related
thereto), amounts required to be applied to the repayment of principal, premium
(if any) and interest on Indebtedness required (other than pursuant to Section
4.06(b)) to be paid as a result of such transaction, and any deduction of
appropriate amounts to be provided by the Company as a reserve in accordance
with GAAP against any liabilities associated with the asset disposed of in such
transaction and retained by the Company after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and bankers' acceptances), damages
and other liabilities payable under the documentation governing any
Indebtedness; provided that Obligations with respect to the Securities shall not
include fees or indemnifications in favor of the Trustee and other third parties
other than the Holders of the Securities.
"Offering Memorandum" means the Offering Memorandum dated
February 25, 1999 relating to the Company's 11 1/4% Senior Subordinated Notes
due 2009.
"Officer" means the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer
or the Secretary of the Company.
13
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company that meets the requirements set
forth in this Indenture.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Pari Passu Indebtedness" means (i) with respect to the
Company, the Securities and any Indebtedness which ranks pari passu in right of
payment to the Securities and (ii) with respect to any Guarantor, its Guarantee
and any Indebtedness which ranks pari passu in right of payment to such
Guarantor's Guarantee.
"Permitted Asset Swap" means any one or more transactions in
which the Company or any Restricted Subsidiary exchanges assets for
consideration consisting of (i) assets used or useful in a Similar Business and
(ii) any cash or Cash Equivalents; provided that such cash or Cash Equivalents
will be considered Net Proceeds from an Asset Sale.
"Permitted Holders" means Blackstone, GE Capital and the
Management Group.
"Permitted Investments" means (i) any Investment in the
Company or any Restricted Subsidiary; (ii) any Investment in Cash Equivalents or
Investment Grade Securities; (iii) any Investment by the Company or any
Restricted Subsidiary of the Company in a Person that is primarily engaged in a
Similar Business if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary or (b) such Person, in one transaction or a series of
related transactions, 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 Restricted Subsidiary; (iv) any Investment in securities or
other assets not constituting Cash Equivalents and received in connection with
an Asset Sale made pursuant to Section 4.06 or any other disposition of assets
not constituting an Asset Sale; (v) any Investment existing on the Closing Date;
(vi) advances to employees not in excess of $5,000,000 outstanding at any one
time in the aggregate; (vii) any Investment acquired by the Company or any of
its Restricted Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (b) as a result
of a foreclosure by the Company or any of its Restricted Subsidiaries with
respect to any secured Investment or other transfer of title with respect to any
secured Investment in default; (viii) Hedging Obligations permitted under
Section 4.03(b)(x); (ix) additional Investments having an aggregate Fair Market
Value, taken together with all other Investments made pursuant to this clause
(ix) that are at that time outstanding, not to exceed the greater of 7.5% of
Total Assets or $10,000,000 at the time of such Investment (with the Fair Market
Value of each Investment being measured at the time made and without giving
effect to subsequent changes in value); (x) loans and advances to officers,
directors and employees for business-related travel expenses, moving expenses
and other similar expenses, in each case Incurred in the ordinary course of
business; (xi) Investments the payment for which consists of Equity Interests of
the Company (other than Disqualified Stock) ("Equity Payment Investments");
provided, however, that such
14
Equity Payment Investments will not increase the amount available for Restricted
Payments under Section 4.04(a)(3); (xii) any transaction to the extent it
constitutes an Investment that is permitted by and made in accordance with
Section 4.07(b) (except transactions described in Section 4.07(b)(ii), (vi) and
(vii)); (xiii) Investments consisting of the licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons; (xiv) Guarantees issued in accordance with Section 4.03; (xv) any
Investment by Restricted Subsidiaries in other Restricted Subsidiaries and
Investments by Subsidiaries that are not Restricted Subsidiaries in other
Subsidiaries that are not Restricted Subsidiaries; (xvi) Investments consisting
of purchases and acquisitions of inventory, supplies, materials and equipment or
purchases of contract rights or licenses or leases of intellectual property, in
each case in the ordinary course of business; (xvii) loans and advances to
Volume Holdings not to exceed $20,000,000 in aggregate principal amount at any
time outstanding, provided that any cash proceeds thereof shall be immediately
contributed by Volume Holdings to the Company or used to repay or service
existing Indebtedness of Volume Holdings to the Company ("Loan Contributions");
provided, however, that the amount of such Loan Contributions will not increase
the amount available for Restricted Payments under Section 4.04(a)(3); (xviii)
loans and advances to VSI Management Direct L.P. and/or Recreational Services,
L.L.C. and/or current or former management personnel of the Company not to
exceed $7,500,000 in aggregate principal amount at any time outstanding, the
proceeds of which will be used to purchase or redeem, directly or indirectly,
shares of Capital Stock of the Company or Volume Holdings or to purchase limited
partnership interests in VSI Management Direct L.P. or Recreational Services,
L.L.C.; and (xix) loans to clients made in connection with entering into
contracts to provide services not to exceed $15,000,000 in any fiscal year or
$30,000,000 in aggregate amount at any time outstanding.
"Permitted Junior Securities" shall mean debt or equity
securities of the Company or any successor corporation issued pursuant to a plan
of reorganization or readjustment of the Company that are subordinated to the
payment of all then-outstanding Senior Indebtedness of the Company at least to
the same extent that the Securities are subordinated to the payment of all
Senior Indebtedness of the Company on the Closing Date, so long as to the extent
that any Senior Indebtedness of the Company outstanding on the date of
consummation of any such plan of reorganization or readjustment is not paid in
full in cash on such date, either (a) the holders of any such Senior
Indebtedness not so paid in full in cash have consented to the terms of such
plan of reorganization or readjustment or (b) such holders receive securities
which constitute Senior Indebtedness and which have been determined by the
relevant court to constitute satisfaction in full in cash of any Senior
Indebtedness not paid in full in cash.
"Permitted Liens" means, with respect to any Person, (i)
pledges or deposits by such Person under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case Incurred in the ordinary course of business; (ii)
Liens imposed by law, such as carriers', warehousemen's and mechanics' Liens, in
each case for sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be proceeding with an appeal
or other proceedings for review; (iii)
15
Liens for taxes, assessments or other governmental charges not
yet due or payable or subject to penalties for nonpayment or which are being
contested in good faith by appropriate proceedings; (iv) Liens in favor of
issuers of performance and surety bonds or bid bonds or completion guarantees or
with respect to other regulatory requirements or letters of credit issued
pursuant to the request of and for the account of such Person in the ordinary
course of its business; (v) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real properties or
Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person; (vi) Liens securing Indebtedness permitted to be
incurred pursuant to Section 4.03(b)(iv); (vii) Liens to secure Indebtedness
permitted pursuant to Section 4.03(b)(i); (viii) Liens existing on the Closing
Date; (ix) Liens on property or shares of stock of a Person at the time such
Person becomes a Subsidiary; provided, however, that such Liens are not created
or Incurred in connection with, or in contemplation of, such other Person
becoming such a Subsidiary; provided further, however, that such Liens may not
extend to any other property owned by the Company or any Restricted Subsidiary;
(x) Liens on property at the time the Company or a Restricted Subsidiary
acquired the property, including any acquisition by means of a merger or
consolidation with or into the Company or any Restricted Subsidiary; provided,
however, that such Liens are not created or Incurred in connection with, or in
contemplation of, such acquisition; provided further, however, that the Liens
may not extend to any other property owned by the Company or any Restricted
Subsidiary; (xi) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Company or another Restricted Subsidiary
permitted to be Incurred in accordance with Section 4.03; (xii) Liens securing
Hedging Obligations so long as the related Indebtedness is, and is permitted to
be under this Indenture, secured by a Lien on the same property securing such
Hedging Obligations; (xiii) Liens on specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) leases and subleases of real property which do not materially interfere
with the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries; (xv) Liens arising from Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company and its Restricted Subsidiaries in the ordinary course of business;
(xvi) Liens in favor of the Company; (xvii) Liens on equipment of the Company
granted in the ordinary course of business to the Company's client at which such
equipment is located; (xviii) Liens encumbering deposits made in the ordinary
course of business to secure obligations arising from statutory, regulatory,
contractual or warranty requirements, including rights of offset and set-off;
(xix) Liens on the Equity Interests of Unrestricted Subsidiaries securing
obligations of Unrestricted Subsidiaries not otherwise prohibited by this
Indenture; (xx) Liens to secure Indebtedness permitted by Section 4.03(b)(xii);
and (xxi) Liens to secure any refinancing, refunding, extension, renewal or
replacement (or successive refinancings, refundings, extensions, renewals or
replacements) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (vi), (vii), (viii), (ix), (x), (xi), (xii)
and (xx); provided, however, that (A) such new Lien shall be limited to all or
part of the same property that secured the original Lien (plus improvements on
such property) and (B) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (x) the outstanding principal
16
amount or, if greater, committed amount of the Indebtedness described under
clauses (vi), (vii), (viii), (ix), (x), (xi), (xii) or (xx) at the time the
original Lien became a Permitted Lien under this Indenture and (y) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock" means any Equity Interest with preferential
right of payment of dividends or upon liquidation, dissolution, or winding up.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or a Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
"S&P" means Standard and Poor's Ratings Group.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Senior Credit Documents" means the collective reference to
the Credit Agreement, the notes issued pursuant thereto and the guarantees
thereof, and the collateral documents relating thereto.
"Senior Indebtedness" with respect to the Company or any
Guarantor means all Indebtedness of the Company or such Guarantor, including
interest thereon (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company or any
Subsidiary of the Company whether or not a claim for post-filing interest is
allowed in such proceeding) and other amounts (including fees, expenses,
reimbursement obligations under letters of credit and indemnities) owing in
respect thereof, whether outstanding on the Closing Date or thereafter Incurred,
unless in the instrument creating or evidencing the same or pursuant
17
to which the same is outstanding it is provided that such obligations are not
superior in right of payment to the Securities or such Guarantor's Guarantee, as
applicable; provided, however, that Senior Indebtedness shall not include, as
applicable, (i) any obligation of the Company to any Subsidiary of the Company,
or of such Guarantor to the Company or any other Subsidiary of the Company, (ii)
any liability for Federal, state, local or other taxes owed or owing by the
Company or such Guarantor, (iii) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (iv) any Indebtedness or
obligation of the Company or such Guarantor which is subordinate or junior in
any respect to any other Indebtedness or obligation of the Company or such
Guarantor, as applicable, including any Pari Passu Indebtedness and any
Subordinated Indebtedness, (v) any obligations with respect to any Capital Stock
or (vi) any Indebtedness Incurred in violation of this Indenture.
"Shelf Registration Statement" has the meaning assigned to it
in the Registration Agreement dated the date hereof.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Similar Business" means a business, the majority of whose
revenues are derived from the provision of food, beverage, catering,
merchandise, management or other services at stadiums, convention centers, ball
parks, concert halls, theaters, seaports, airports, golf courses, arenas,
racetracks, parks, malls, zoos, bandstands, or other recreational venues, or the
activities of the Company and its Subsidiaries as of the Closing Date or any
business or activity that is reasonably similar thereto or a reasonable
extension, development or expansion thereof or ancillary thereto.
"Specified Cash Contributions" means the aggregate amount of
cash contributions (other than Excluded Contributions) made to the capital of
the Company which are designated as "Specified Cash Contributions" pursuant to
an Officers' Certificate.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Indebtedness" means (a) with respect to the
Company, any Indebtedness of the Company which is by its terms subordinated in
right of payment to the Securities and (b) with respect to any Guarantor, any
Indebtedness of such Guarantor which is by its terms subordinated in right of
payment to its Guarantee.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity (other than a partnership,
joint venture or limited liability company) of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time of determination owned or
18
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,
joint venture or limited liability company of which (x) more than 50% of the
capital accounts, distribution rights, total equity and voting interests or
general and limited partnership interests, as applicable, are owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof, whether in the form of
membership, general, special or limited partnership interests or otherwise and
(y) such Person or any Wholly Owned Restricted Subsidiary of such Person is a
controlling general partner or otherwise controls such entity.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Section Section 77aaa-77bbbb) as in effect on the Closing Date.
"Total Assets" means the total consolidated assets of the
Company and its Restricted Subsidiaries, as shown on the most recent balance
sheet of the Company.
"Transactions" has the meaning assigned to it in the Offering
Memorandum.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release H.
15(519) which has become publicly available at least two Business Days prior to
the redemption date (or, if such Statistical Release is no longer published, any
publicly available source or similar market data)) most nearly equal to the
period from the redemption date to March 1, 2004; provided, however, that if the
period from the redemption date to March 1, 2004 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given, except
that if the period from the redemption date to March 1, 2004 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means (i) any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and (ii) who shall have
direct responsibility for the administration of this Indenture.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted
19
Subsidiary. The Board of Directors may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any
property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided, however, that the
Subsidiary to be so designated and its Subsidiaries do not at the time of
designation have and do not thereafter Incur any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries; provided further, however, that either (a) the
Subsidiary to be so designated has total consolidated assets of $1,000 or less
or (b) if such Subsidiary has consolidated assets greater than $1,000, then such
designation would be permitted under Section 4.04. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after giving effect to such designation (x) (1) the
Company could Incur $1.00 of additional Indebtedness pursuant to Section 4.03(a)
or (2) the Fixed Charge Coverage Ratio for the Company and its Restricted
Subsidiaries would be greater than such ratio for the Company and its Restricted
Subsidiaries immediately prior to such designation, in each case on a pro forma
basis taking into account such designation and (y) no Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or Disqualified Stock, as the case may be, at any date, the
quotient obtained by dividing (i) the sum of the products of the number of years
from the date of determination to the date of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock multiplied by the amount of such payment, by
(ii) the sum of all such payments.
"Wholly Owned Restricted Subsidiary" is any Wholly Owned
Subsidiary that is a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person 100% of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
20
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ------------------
"Affiliate Transaction"............................. 4.07(a)
"Asset Sale Offer".................................. 4.06(b)
"Bankruptcy Law".................................... 6.01
"Blockage Notice"................................... 10.03
"Change of Control Offer"........................... 4.09(b)
"covenant defeasance option"........................ 8.01(b)
"Custodian"......................................... 6.01
"Equity Payment Investments"........................ 1.01, "Permitted
Investments"
"Event of Default".................................. 6.01
"Excess Proceeds"................................... 4.06(b)
"Guarantee Blockage Notice"......................... 12.03
"Guaranteed Obligations"............................ 11.01
"Guarantee Payment Blockage Period"................. 12.03
"legal defeasance option"........................... 8.01(b)
"Legal Holiday"..................................... 13.08
"Loan Contributions"................................ 1.01, "Permitted
"Management Equity"................................. Investments"
4.04(b)
"Offer Period"...................................... 4.06(c)
"pay its Guarantee"................................. 12.03
"pay the Securities"................................ 10.03
"Paying Agent"...................................... 2.04
"Payment Blockage Period"........................... 10.03
"protected purchaser"............................... 2.08
"Purchase Date"..................................... 4.06(c)
"Refinancing Indebtedness".......................... 4.03(b)
"Refunding Capital Stock"........................... 4.04(b)
"Registrar"......................................... 2.04
"Restricted Payments"............................... 4.04(a)
"Retired Capital Stock"............................. 4.04(b)
"Royalty Fee Contributions"......................... 4.04(b)
"Successor Company"................................. 5.01(a)
"Successor Guarantor"............................... 5.01(b)
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the
Guarantees.
"indenture security holder" means a Holder or Securityholder.
21
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(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) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is $200,000,000. The Securities may be issued in
one or more series. All Securities of any one series shall be substantially
identical except as to denomination.
With respect to any Additional Securities issued after the
Closing Date (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.10 or 3.06 or
22
the Appendix and, except for Securities which, pursuant to Section 2.03, are
deemed never to have been authenticated and delivered hereunder), there shall be
(i) established in or pursuant to a resolution of the Board of Directors and
(ii) (A) set forth or determined in the manner provided in an Officers'
Certificate or (B) established in one or more indentures supplemental hereto,
prior to the issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as part
of a new or existing series of Securities and the title of such
Additional Securities (which shall distinguish the Additional
Securities of the series from Securities of any other series);
(2) the aggregate principal amount of such Additional
Securities which may be authenticated and delivered under this
Indenture, which shall be in an aggregate principal amount not to
exceed $100,000,000 (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the same series pursuant to Section 2.07, 2.08,
2.10 or 3.06 or the Appendix and except for Securities which, pursuant
to Section 2.03, are deemed never to have been authenticated and
delivered hereunder);
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue;
(4) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities (as defined in the Appendix) and, in such case, the
respective depositaries for such Global Securities, the form of any
legend or legends which shall be borne by such Global Securities in
addition to or in lieu of those set forth in Exhibit A hereto and any
circumstances in addition to or in lieu of those set forth in Section
2.3 of the Appendix in which any such Global Security may be exchanged
in whole or in part for Additional Securities registered, or any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the depositary for such
Global Security or a nominee thereof; and
(5) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities as set forth in Exhibit A,
but shall be issued in the form of Exchange Securities as set forth in
Exhibit B.
If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the Board of Directors,
a copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the indenture
supplemental hereto setting forth the terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original Securities, the Additional Securities, the Private Exchange Securities
and the Exchange Securities are set forth in the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The (i) Original
Securities and the Trustee's certificate of authentication, (ii) Private
Exchange Securities and the Trustee's certificate of authentication and (iii)
any Additional Securities (if issued as Transfer Restricted Securities (as
defined in the Appendix)) and the Trustee's certificate of authentication
23
shall each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and any Additional Securities issued other than as Transfer
Restricted Securities and the Trustee's certificate of authentication shall each
be substantially in the form of Exhibit B hereto, which is hereby incorporated
in and expressly made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company or any Guarantor is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Security shall be dated the date of its authentication.
The Securities shall be issuable only in registered form without interest
coupons and only in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Execution and Authentication. One or more
Officers shall sign the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer, a copy of which
shall be furnished to the Company. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.04. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent, and the
term "Registrar" includes any co-registrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Securities and
(ii) the Securities Custodian (as defined in the Appendix) with respect to the
Global Securities.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section
24
7.07. The Company or any of its domestically organized Wholly Owned Subsidiaries
may act as Paying Agent or Registrar.
The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (1) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (2) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (1) above. The Registrar or Paying Agent may resign at
any time upon written notice; provided, however, that the Trustee may resign as
Paying Agent or Registrar only if the Trustee also resigns as Trustee in
accordance with Section 7.08.
SECTION 2.05. Paying Agent To Hold Money in Trust. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent (or if the Company or a Subsidiary is acting as
Paying Agent, segregate and hold in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary of the Company acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.06. Securityholder 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
SECTION 2.07. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix. When
a Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if the requirements of
Section 8-401(a)(l) of the Uniform Commercial Code are met. When Securities are
presented to the Registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's request. The Company
may require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this Section. The Company shall not be required to make and the Registrar need
not register transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in
25
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Guarantors, the Trustee, the Paying Agent, and
the Registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of the
Company, any Guarantor, the Trustee, the Paying Agent, or the Registrar shall be
affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by (i) the
Holder of such Global Security (or its agent) or (ii) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (i)
satisfies the Company or the Trustee within a reasonable time after he has
notice of such loss, destruction or wrongful taking and the Registrar does not
register a transfer prior to receiving such notification, (ii) makes such
request to the Company or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (iii) satisfies any other reasonable requirements
of the Trustee. If required by the Trustee or the Company, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Company, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Security is replaced. The Company and the Trustee
may charge the Holder for their expenses in replacing a Security. In the event
any such mutilated, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding.
26
Subject to Section 13.06, a Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest and liquidated damages payable on
that date with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture, then on and after that date such Securities (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that
Definitive Securities (as defined in the Appendix) are to be issued under the
terms of this Indenture, until such Definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substan tially in the form of
Definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities and
deliver them in exchange for temporary Securities upon surrender of such
temporary Securities at the office or agency of the Company, without charge to
the Holder.
SECTION 2.11. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and deliver proof of canceled Securities to the Company pursuant to
written direction by an Officer. The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company, upon becoming aware, through written
notice, of any change in such "CUSIP" numbers, shall promptly notify the Trustee
of such change.
27
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Company to the effect that such redemption shall comply
with the conditions herein. If fewer than all the Securities are to be redeemed,
the record date relating to such redemption shall be selected by the Company and
given to the Trustee, which record date shall be not fewer than 15 days after
the date of notice to the Trustee. Any such notice may be canceled at any time
prior to notice of such redemption being mailed to any Holder and shall thereby
be void and of no effect.
SECTION 3.02. Selection of Securities to Be Redeemed. In the
case of any partial redemption, selection of the Securities for redemption shall
be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which such Securities are listed, or if
such Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate (and in such manner as
complies with applicable legal requirements); provided that no Securities of
$1,000 or less shall be redeemed in part. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption. The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Company, or
the Trustee at the Company's direction, shall mail a notice of redemption by
first-class mail to each Holder of Securities to be redeemed at such Holder's
registered address; provided that in the event the Trustee is to mail such
notice, the Company shall deliver to the Trustee, at least 45 days prior to the
Redemption Date, an Officer's Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
below.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price and the amount of accrued interest to
the redemption date;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
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(5) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed in full or part;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the CUSIP number, if any, printed on the Securities being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest and liquidated damages, if
any, to the redemption date; provided, however, that if the redemption date is
after a regular record date and on or prior to the interest payment date, the
accrued interest shall be payable to the Securityholder of the redeemed
Securities registered on the relevant record date. Failure to give notice or any
defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00
a.m., New York City time, on the redemption date, the Company shall deposit with
the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest and liquidated damages, if any, on all Securities to be
redeemed on that date other than Securities or portions of Securities called for
redemption that have been delivered by the Company to the Trustee for
cancelation. On and after the redemption date, interest will cease to accrue on
Securities or portions thereof called for redemption so long as the Company has
deposited with the Paying Agent funds sufficient to pay the principal of, plus
accrued and unpaid interest and liquidated damages (if any) on, the Securities
to be redeemed.
SECTION 3.06. Securities Redeemed in Part. Upon surrender and
cancelation of a Security that is redeemed in part, the Company shall execute
and the Trustee shall authenticate for the Holder (at the Company's expense) a
new Security equal in principal amount to the unredeemed portion of the Security
surrendered.
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ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Reports and Other Information. Notwithstanding
that the Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act or otherwise report on an annual and quarterly
basis on forms provided for such annual and quarterly reporting pursuant to
rules and regulations promulgated by the SEC, the Company shall file with the
SEC (and provide the Trustee and Holders with copies thereof, without cost to
each Holder, within 15 days after it files them with the SEC), (i) within 90
days after the end of each fiscal year, annual reports on Form 10-K (or any
successor or comparable form) containing the information required to be
contained therein (or required in such successor or comparable form), (ii)
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, reports on Form 10-Q (or any successor or comparable form), (iii)
promptly from time to time after the occurrence of an event required to be
therein reported, such other reports on Form 8-K (or any successor or comparable
form), and (iv) any other information, documents and other reports which the
Company would be required to file with the SEC if it were subject to Section 13
or 15(d) of the Exchange Act; provided, however, the Company shall not be so
obligated to file such reports with the SEC if the SEC does not permit such
filing, in which event the Company will make available such information to
prospective purchasers of Securities, in addition to providing such information
to the Trustee and the Holders, in each case within 15 days after the time the
Company would be required to file such information with the SEC if it were
subject to Section 13 or 15(d) of the Exchange Act. Notwithstanding the
foregoing, such requirements shall be deemed satisfied prior to the earlier of
(i) 90 days after the Closing Date and (ii) the filing with the SEC of the
Exchange Offer Registration Statement and/or Shelf Registration Statement, by
the filing with the SEC of the Exchange Offer Registration Statement and/or
Shelf Registration Statement, with such financial information that satisfies
Regulation S-X of the Securities Act, provided, however, that in order for the
provisions of clause (i) above to be deemed satisfied with respect to the year
ended December 29, 1998, such Exchange Offer Registration Statement or Shelf
Registration Statement must include audited financial statements for the year
ended December 29, 1998.
SECTION 4.03. Limitations on Incurrence of Indebtedness and
Issuance of Disqualified Stock and Preferred Stock. (a) The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue
any shares of Disqualified Stock and (ii) the Company shall not permit any of
its Restricted Subsidiaries to issue any shares of
30
Preferred Stock; provided, however, that the Company and any Guarantor may Incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock and any Guarantor may issue shares of Preferred Stock if the Fixed Charge
Coverage Ratio of the Company for the 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 or Preferred Stock is issued would have been at least 2.00 to
1.00 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 or Preferred Stock had been issued, as the case may be,
and the application of proceeds therefrom had occurred at the beginning of such
four-quarter period.
(b) Section 4.03(a) will not apply to:
(i) the Incurrence by the Company or its Restricted
Subsidiaries of Indebtedness under the Credit Agreement and the
issuance and creation of letters of credit and bankers' acceptances
thereunder (with letters of credit and bankers' acceptances being
deemed to have a principal amount equal to the face amount thereof) up
to an aggregate principal amount of $230,000,000 outstanding at any one
time;
(ii) the Incurrence by the Company and the Guarantors of
Indebtedness represented by the Original Securities (not including any
Additional Securities) and any Exchange Securities in respect thereof
and the Guarantees, as applicable;
(iii) Indebtedness existing on the Closing Date (other than
Indebtedness described in clauses (i) and (ii));
(iv) Indebtedness (including Capitalized Lease Obligations)
Incurred by the Company or any of its Restricted Subsidiaries, to
finance the purchase, lease or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets
or the Capital Stock of any Person owning such assets) in an aggregate
principal amount which, when aggregated with the principal amount of
all other Indebtedness then outstanding and Incurred pursuant to this
clause (iv) and all Refinancing Indebtedness (as defined below)
Incurred to refund, refinance or replace any Indebtedness Incurred
pursuant to this clause (iv), does not exceed the greater of 7.5% of
Total Assets at the time of Incurrence or $10,000,000;
(v) Indebtedness Incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business,
including without limitation letters of credit in respect of workers'
compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance, or with
respect to agreements to provide services, or other Indebtedness with
respect to reimbursement type obligations regarding workers'
compensation claims; provided, however, that upon the drawing of such
letters of credit, such obligations are reimbursed within 30 days
following such drawing;
(vi) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, Incurred in
connection with the disposition of any
31
business, assets or a Subsidiary of the Company in accordance with the
terms of this Indenture, other than guarantees of Indebtedness Incurred
by any Person acquiring all or any portion of such business, assets or
Subsidiary for the purpose of financing such acquisition;
(vii) Indebtedness of the Company to a Restricted Subsidiary
of the Company; provided that any such Indebtedness is subordinated in
right of payment to the Securities; provided further, that any
subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary of the Company or any other subsequent transfer
of any such Indebtedness (except to the Company or another Restricted
Subsidiary) shall be deemed, in each case to be an Incurrence of such
Indebtedness;
(viii) shares of Preferred Stock of a Restricted Subsidiary
issued to the Company or another Restricted Subsidiary of the Company;
provided that any subsequent issuance or transfer of any Capital Stock
or any other event which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any other subsequent transfer
of any such shares of Preferred Stock (except to the Company or another
Restricted Subsidiary of the Company) shall be deemed, in each case, to
be an issuance of shares of Preferred Stock;
(ix) Indebtedness of a Restricted Subsidiary to the Company or
another Restricted Subsidiary of the Company; provided that (A) any
such Indebtedness is made pursuant to an intercompany note and (B) if a
Guarantor incurs such Indebtedness to a Restricted Subsidiary that is
not a Guarantor such Indebtedness is subordinated in right of payment
to the Guarantee of such Guarantor; provided further that any
subsequent issuance or transfer of any Capital Stock or any other event
which results in any Restricted Subsidiary lending such Indebtedness
ceasing to be a Restricted Subsidiary or any other subsequent transfer
of any such Indebtedness (except to the Company or another Restricted
Subsidiary of the Company) shall be deemed, in each case, to be an
Incurrence of such Indebtedness;
(x) Hedging Obligations that are Incurred in the ordinary
course of business (A) for the purpose of fixing or hedging interest
rate risk with respect to any Indebtedness that is permitted by the
terms of this Indenture to be outstanding, (B) for the purpose of
fixing or hedging currency exchange rate risk with respect to any
currency exchanges or (C) for the purpose of fixing or hedging
commodity price risk with respect to any commodity purchases;
(xi) obligations in respect of performance, bid and surety
bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business;
(xii) Indebtedness or Disqualified Stock of the Company and
any Restricted Subsidiary not otherwise permitted hereunder in an
aggregate principal amount, which when aggregated with the principal
amount or liquidation preference of all other Indebtedness and
Disqualified Stock then outstanding and Incurred pursuant to this
clause (xii), does not exceed $25,000,000 at any one time outstanding;
provided, however, that Indebtedness of Foreign Subsidiaries, which
32
when aggregated with the principal amount of all other Indebtedness of
Foreign Subsidiaries then outstanding and Incurred pursuant to this
clause (xii), does not exceed $10,000,000 (or the equivalent thereof in
any other currency) at any one time outstanding (it being understood
that any Indebtedness Incurred under this clause (xii) shall cease to
be deemed Incurred or outstanding for purposes of this clause (xii) but
shall be deemed to be Incurred for purposes of Section 4.03(a) from and
after the first date on which the Company could have Incurred such
Indebtedness under Section 4.03(a) without reliance upon this clause
(xii));
(xiii) any guarantee by the Company or a Guarantor of
Indebtedness or other obligations of the Company or any of its
Restricted Subsidiaries so long as the Incurrence of such Indebtedness
Incurred by the Company or such Restricted Subsidiary is permitted
under the terms of this Indenture; provided that if such Indebtedness
is by its express terms subordinated in right of payment to the
Securities or the Guarantee of such Restricted Subsidiary, as
applicable, any such guarantee of such Guarantor with respect to such
Indebtedness shall be subordinated in right of payment to such
Guarantor's Guarantee with respect to the Securities substantially to
the same extent as such Indebtedness is subordinated to the Securities
or the Guarantee of such Restricted Subsidiary, as applicable;
(xiv) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness which serves to refund or refinance any
Indebtedness Incurred as permitted under Section 4.03(a) and clauses
(ii) and (iii) above, or any Indebtedness issued to so refund or
refinance such Indebtedness (subject to the following proviso,
"Refinancing Indebtedness") prior to its respective maturity; provided,
however, that such Refinancing Indebtedness (A) has a Weighted Average
Life to Maturity at the time such Refinancing Indebtedness is Incurred
which is not less than the remaining Weighted Average Life to Maturity
of the Indebtedness being refunded or refinanced, (B) has a Stated
Maturity which is no earlier than the Stated Maturity of the
Indebtedness being refunded or refinanced, (C) to the extent such
Refinancing Indebtedness refinances Indebtedness pari passu with the
Securities or the Guarantee of such Restricted Subsidiary, as
applicable, is pari passu with the Securities or the Guarantee of such
Restricted Subsidiary, as applicable, (D) is Incurred in an aggregate
principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the aggregate
principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being
refinanced plus premium and fees Incurred in connection with such
refinancing, and (E) shall not include (x) Indebtedness of a Restricted
Subsidiary that is not a Guarantor that refinances Indebtedness of the
Company or (y) Indebtedness of the Company or a Restricted Subsidiary
that refinances Indebtedness of an Unrestricted Subsidiary; and
provided further that subclauses (A) and (B) of this clause (xiv) shall
not apply to any refunding or refinancing of any Senior Indebtedness;
(xv) Indebtedness or Disqualified Stock of Persons that are
acquired by the Company or any of its Restricted Subsidiaries or merged
into a Restricted Subsidiary in accordance with the terms of this
Indenture; provided, however, that such Indebtedness or Disqualified
Stock is not Incurred in contemplation of such acquisition or merger or
to provide all or a portion of the funds or credit support required to
consummate such acquisition or merger; provided further, however,
33
that after giving effect to such acquisition and the Incurrence of such
Indebtedness either (A) the Company would be permitted to Incur at
least $1.00 of additional Indebtedness pursuant to Section 4.03(a) or
(B) the Fixed Charge Coverage Ratio would be greater than immediately
prior to such acquisition; and
(xvi) Contribution Indebtedness.
(c) Notwithstanding the foregoing, neither the Company nor any
Guarantor may Incur any Indebtedness pursuant to Section 4.03(b) above if the
proceeds thereof are used, directly or indirectly, to repay, prepay, redeem,
defease, retire, refund or refinance any Subordinated Indebtedness unless such
Indebtedness will be subordinated to the Securities or such Guarantor's
Guarantee, as applicable, to at least the same extent as such Subordinated
Indebtedness. For purposes of determining compliance with this Section 4.03, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of permitted Indebtedness described in clauses 4.03(b)(i) through
(xvi) above or is entitled to be Incurred pursuant to Section 4.03(a), the
Company shall, in its sole discretion, classify or reclassify such item of
Indebtedness in any manner that complies with this covenant and such item of
Indebtedness will be treated as having been Incurred pursuant to only one of
such clauses of Section 4.03(b) or pursuant to Section 4.03(a) hereof. Accrual
of interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness will not be deemed to be an Incurrence of
Indebtedness for purposes of this Section 4.03.
(d) The Company shall not, and not permit any Guarantor to,
directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness)
that is subordinate in right of payment to any Indebtedness of the Company or
any Indebtedness of any Guarantor, as the case may be, unless such Indebtedness
is either (i) pari passu in right of payment with the Securities or such
Guarantor's Guarantee, as the case may be, or (ii) subordinate in right of
payment to the Securities or such Guarantor's Guarantee, as the case may be.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend or make any distribution
on account of Volume Holdings', the Company's or any of its Restricted
Subsidiaries' Equity Interests, including any payment made in connection with
any merger or consolidation involving the Company (other than (A) dividends or
distributions by the Company payable solely in Equity Interests (other than
Disqualified Stock) of the Company or (B) dividends or distributions by a
Restricted Subsidiary so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by a
Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the
Company or a Restricted Subsidiary receives at least its pro rata share of such
dividend or distribution in accordance with its Equity Interests in such class
or series of securities); (ii) purchase or otherwise acquire or retire for value
any Equity Interests of Volume Holdings or the Company; (iii) make any principal
payment on, or redeem, repurchase, defease or otherwise acquire or retire for
value, in each case prior to any scheduled repayment or scheduled maturity, any
Subordinated Indebtedness (other than the payment, redemption, repurchase,
defeasance, acquisition or retirement of (A) Subordinated Indebtedness in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of such payment,
redemption, repurchase, defeasance, acquisition or retirement and (B)
Indebtedness permitted under clauses (vii) and (ix) of Section 4.03(b));
34
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 shall have occurred and be
continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a
pro forma basis, the Company could Incur $1.00 of additional
Indebtedness under Section 4.03(a); and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Closing Date (including Restricted
Payments permitted by clauses (i), (v), (vi), and (viii) of Section
4.04(b), but excluding all other Restricted Payments permitted by
Section 4.04(b)), is less than the sum of, without duplication, (A) 50%
of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the fiscal quarter that first begins after
the Closing Date to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the
time of such Restricted Payment (or, in the case such Consolidated Net
Income for such period is a deficit, minus 100% of such deficit), plus
(B) 100% of the aggregate net proceeds, including cash and the Fair
Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash, received by the Company since
the Closing Date from the issue or sale of Equity Interests of the
Company (excluding Refunding Capital Stock (as defined below),
Designated Preferred Stock, Excluded Contributions and Disqualified
Stock), including Equity Interests issued upon conversion of
Indebtedness or upon exercise of warrants or options (other than an
issuance or sale to a Subsidiary of the Company or an employee stock
ownership plan or trust established by the Company or any of its
Subsidiaries), plus (C) 100% of the aggregate amount of contributions
to the capital of the Company received in cash and the Fair Market
Value (as determined in accordance with the next succeeding sentence)
of property other than cash since the Closing Date (other than Excluded
Contributions, Refunding Capital Stock, Designated Preferred Stock and
Disqualified Stock), plus (D) 100% of the aggregate amount received in
cash and the Fair Market Value (as determined in accordance with the
next succeeding sentence) of property other than cash received from (x)
the sale or other disposition (other than to the Company or a
Restricted Subsidiary) of Restricted Investments made by the Company
and its Restricted Subsidiaries and from repurchases and redemptions of
such Restricted Investments from the Company and its Restricted
Subsidiaries by any Person (other than the Company or any of its
Subsidiaries) and from repayments of loans or advances which
constituted Restricted Investments, (y) the sale (other than to the
Company or a Subsidiary) of the Capital Stock of an Unrestricted
Subsidiary or (z) a distribution or dividend from an Unrestricted
Subsidiary, plus (E) in the event any Unrestricted Subsidiary has been
redesignated as a Restricted Subsidiary or has been merged,
consolidated or amalgamated with or into, or transfers or conveys its
assets to, or is liquidated into, the Company or a Restricted
Subsidiary, the Fair Market Value (as determined in good faith by the
Board of Directors) of the Investment of the Company in such
Unrestricted Subsidiary at the time of such redesignation, combination
or transfer (or of the
35
assets transferred or conveyed, as applicable), after deducting any
Indebtedness associated with the Unrestricted Subsidiary so designated
or combined or any Indebtedness associated with the assets so
transferred or conveyed, not to exceed, in the case of any Unrestricted
Subsidiary, the amount of Investments previously made by the Company or
any Restricted Subsidiary in such Unrestricted Subsidiary, which amount
was included in the calculation of the amount of Restricted Payments,
less (F) the amount of all Specified Cash Contributions, less (G) the
amount of all Equity Payment Investments, less (H) the amount of all
Loan Contributions, less (I) the amount of all Management Equity and
less (J) the amount of all Royalty Fee Contributions. The Fair Market
Value of property other than cash covered by clauses (B), (C), (D) and
(E) above shall be determined in good faith by the Company and (x) in
the event of property with a Fair Market Value in excess of $2,500,000,
shall be set forth in an Officers' Certificate or (y) in the event of
property with a Fair Market Value in excess of $10,000,000, shall be
set forth in a resolution approved by at least a majority of the Board
of Directors.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) the payment of any dividend or distribution within 60 days
after the date of declaration thereof, if at the date of declaration
such payment would have complied with the provisions of this Indenture;
(ii) (A) the repurchase, retirement or other acquisition of
any Equity Interests ("Retired Capital Stock") or Subordinated
Indebtedness of the Company in exchange for, or out of the proceeds of
the substantially concurrent sale of, Equity Interests of the Company
or contributions to the equity capital of the Company (other than any
Disqualified Stock or any Equity Interests sold to a Subsidiary of the
Company or to an employee stock ownership plan or any trust established
by the Company or any of its Subsidiaries) (collectively, including any
such contributions, "Refunding Capital Stock") and (B) the declaration
and payment of accrued dividends on the Retired Capital Stock out of
the proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company or to an employee stock ownership plan or any
trust established by the Company or any of its Subsidiaries) of
Refunding Capital Stock;
(iii) the redemption, repurchase or other acquisition or
retirement of Subordinated Indebtedness of the Company made by exchange
for, or out of the proceeds of the substantially concurrent sale of,
new Indebtedness of the Company which is Incurred in accordance with
Section 4.03 hereof so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired for
value (plus the amount of any premium required to be paid under the
terms of the instrument governing the Subordinated Indebtedness being
so redeemed, repurchased, acquired or retired), (B) such Indebtedness
is subordinated to Senior Indebtedness and the Securities at least to
the same extent as such Subordinated Indebtedness so purchased,
exchanged, redeemed, repurchased, acquired or retired for value, (C)
such Indebtedness has a final scheduled maturity date equal to or later
than the final scheduled maturity date of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired, and (D) such
Indebtedness has a Weighted Average Life to Maturity equal
36
to or greater than the remaining Weighted Average Life to Maturity of
the Subordinated Indebtedness being so redeemed, repurchased, acquired
or retired;
(iv) the repurchase, retirement or other acquisition (or
dividends to Volume Holdings to finance any such repurchase, retirement
or other acquisition) for value of Equity Interests of the Company or
Volume Holdings held, directly or indirectly, by any future, present or
former employee, director or consultant of the Company or any
Subsidiary of the Company or any entity in which any of the foregoing
has a beneficial or economic ownership interest pursuant to any
management equity plan or stock option plan or any other management or
employee benefit plan or agreement or any other agreement pursuant to
which stock is held for the benefit of such persons; provided, however,
that the aggregate amounts paid under this clause (iv) do not exceed
$3,500,000 in any calendar year (with unused amounts in any calendar
year being permitted to be carried over for the two succeeding calendar
years); provided further, however, that such amount in any calendar
year may be increased by an amount not to exceed (A) the cash proceeds
received by the Company or any of its Restricted Subsidiaries from the
sale of Equity Interests of the Company (other than Disqualified Stock)
to members of management, directors or consultants of the Company and
its Restricted Subsidiaries that occurs after the Closing Date (any
such cash proceeds that are utilized for any such repurchase,
retirement, other acquisition or dividend, "Management Equity")
(provided that the amount of such Management Equity will not increase
the amount available for Restricted Payments under Section
4.04(a)(3)hereof) plus (B) the cash proceeds of key man life insurance
policies received by the Company and its Restricted Subsidiaries after
the Closing Date (provided that the Company may elect to apply all or
any portion of the aggregate increase contemplated by clauses (A) and
(B) above in any single calendar year);
(v) the declaration and payment of dividends or distributions
to holders of any class or series of Disqualified Stock of the Company
or any of its Restricted Subsidiaries issued or incurred in accordance
with Section 4.03 hereof;
(vi) the declaration and payment of dividends or distributions
to holders of any class or series of Designated Preferred Stock issued
after the Closing Date; provided, however, that (A) for the most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of
such Designated Preferred Stock, after giving effect to such issuance
(and the payment of dividends or distributions) on a pro forma basis,
the Company would have had a Fixed Charge Coverage Ratio of at least
2.25 to 1.00 and (B) the aggregate amount of dividends declared and
paid pursuant to this clause (vi) does not exceed the net cash proceeds
received by the Company from the sale of Designated Preferred Stock
issued after the Closing Date;
(vii) Investments in Unrestricted Subsidiaries having an
aggregate Fair Market Value, taken together with all other Investments
made pursuant to this clause (vii) that are at that time outstanding,
not to exceed $10,000,000 (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);
37
(viii) the payment of dividends on the Company's common stock
(or the payment of dividends to Volume Holdings to fund the payment by
Volume Holdings of dividends on Volume Holdings' common stock)
following the first public offering of common stock of the Company or
Volume Holdings, as the case may be, after the Closing Date, of up to
6% per annum of the net proceeds received by the Company or contributed
to the Company by Volume Holdings from such public offering;
(ix) Investments that are made with Excluded Contributions;
(x) other Restricted Payments in an aggregate amount not to
exceed $7,500,000;
(xi) the payment of dividends, other distributions or other
amounts by the Company (A) to Volume Holdings in amounts equal to the
amounts required for Volume Holdings to pay fees and expenses required
to maintain its corporate existence and other operating costs in an
aggregate amount of up to $1,000,000 per fiscal year and (B) to Volume
Holdings in amounts equal to amounts required for Volume Holdings to
pay franchise taxes and federal, state and local income taxes to the
extent such income taxes are attributable to the income of the Company
and its Restricted Subsidiaries (and, to the extent of amounts actually
received from its Unrestricted Subsidiaries, in amounts required to pay
such taxes to the extent attributable to the income of such
Unrestricted Subsidiaries);
(xii) repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion
of the exercise price of such options;
(xiii) the transfer to Volume Holdings of trademarks and
servicemarks and the payment of license fees to Volume Holdings in
respect of such trademarks and servicemarks; provided, however, that
all such license fees are immediately contributed by Volume Holdings to
the Company or used to repay or service existing Indebtedness of Volume
Holdings to the Company ("Royalty Fee Contributions") (provided that
the amount of such Royalty Fee Contributions will not increase the
amount available for Restricted Payments under Section 4.04(a)(3)
hereof); and
(xiv) dividends to Volume Holdings in an amount not to exceed
$50,000,000 as contemplated by the "Use of Proceeds" section of the
Offering Memorandum;
provided, however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (v), (vi), (vii), (viii) and (x), no
Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof; provided further, however, that for purposes of
determining the aggregate amount expended for Restricted Payments in accordance
with Section 4.04(a)(3) hereof, only the amounts expended under clauses (i),
(v), (vi) and (viii) of this Section 4.04(b) shall be included.
As of the Closing Date, all of the Company's Subsidiaries
shall be Restricted Subsidiaries. The Company shall not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the definition
of "Unrestricted
38
Subsidiary." For purposes of designating any Restricted Subsidiary as an
Unrestricted Subsidiary, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated will be deemed to be Restricted Payments in an amount determined as
set forth in the last sentence of the definition of "Investments." Such
designation will only be permitted if a Restricted Payment in such amount would
be permitted at such time (whether pursuant to Section 4.04(a) hereof or under
clause (vii), (ix) or (x) of this Section 4.04(b)) and if such Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
SECTION 4.05. Dividend and Other Payment Restrictions
Affecting Subsidiaries. The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any Restricted Subsidiary to: (a) (i) pay
dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits, or (ii) pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries; (b) make
loans or advances to the Company or any of its Restricted Subsidiaries; or (c)
sell, lease or transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries except in each case for such encumbrances or
restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the
Closing Date, including pursuant to the Credit Agreement and the other
Senior Credit Documents;
(2) this Indenture and the Securities;
(3) applicable law or any applicable rule, regulation or
order;
(4) any agreement or other instrument relating to Indebtedness
of a Person acquired by the Company or any Restricted Subsidiary which
was in existence at the time of such acquisition (but not created in
contemplation thereof or to provide all or any portion of the funds or
credit support utilized to consummate such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(5) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition;
(6) Secured Indebtedness otherwise permitted to be Incurred
pursuant to Sections 4.03 and 4.08 hereof that limit the right of the
debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(8) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business;
39
(9) customary provisions contained in leases, agreements to
provide services and other similar agreements entered into in the
ordinary course of business that impose restrictions of the type
described in clause (c) above;
(10) other Indebtedness of Restricted Subsidiaries permitted
to be Incurred subsequent to the Closing Date pursuant to clause (xii)
of the Section 4.03(b) hereof; or
(11) any encumbrances or restrictions of the type referred to
in clauses (a), (b) and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (1) through (10) above; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good
faith judgment of the Board of Directors, no more restrictive with
respect to such dividend and other payment restrictions than those
contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement,
refunding, replacement or refinancing.
SECTION 4.06. Asset Sales. (a) The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, cause or make an Asset
Sale, unless (x) the Company, or its Restricted Subsidiaries, as the case may
be, receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value (as determined in good faith by the Company) of the assets
sold or otherwise disposed of and (y) except in the case of a Permitted Asset
Swap, at least 75% of the consideration therefor received by the Company, or
such Restricted Subsidiary, as the case may be, is in the form of Cash
Equivalents; provided that the amount of (i) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet or in the
notes thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Securities) that are
assumed by the transferee of any such assets, (ii) any notes or other
obligations or other securities received by the Company or such Restricted
Subsidiary from such transferee that are converted by the Company or such
Restricted Subsidiary into cash within 180 days of the receipt thereof (to the
extent of the cash received), and (iii) any Designated Noncash Consideration
received by the Company or any of its Restricted Subsidiaries in such Asset Sale
having an aggregate Fair Market Value, taken together with all other Designated
Noncash Consideration received pursuant to this clause (iii) that is at that
time outstanding, not to exceed the greater of 7.5% of Total Assets or
$10,000,000 (with the Fair Market Value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to
subsequent changes in value) shall be deemed to be Cash Equivalents for the
purposes of this provision.
(b) Within 365 days after the Company's or any Restricted
Subsidiary's receipt of the Net Proceeds of any Asset Sale, the Company or such
Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its
option, (i) to permanently reduce Obligations under the Credit Agreement (and,
in the case of revolving Obligations, to correspondingly reduce commitments with
respect thereto) or other Senior Indebtedness or Pari Passu Indebtedness
(provided that if the Company shall so reduce Obligations under Pari Passu
Indebtedness, it will equally and ratably reduce Obligations under the
Securities by making an offer (in accordance with the procedures set forth below
for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to
100% of the
40
principal amount thereof, plus accrued and unpaid interest and liquidated
damages, if any, the pro rata principal amount of Securities) or Indebtedness of
a Restricted Subsidiary, in each case other than Indebtedness owed to the
Company or an Affiliate of the Company, (ii) to an investment in any one or more
businesses, capital expenditures or acquisitions of other assets in each case
used or useful in a Similar Business, and/or (iii) to make an investment in
properties or assets that replace the properties and assets that are the subject
of such Asset Sale. Pending the final application of any such Net Proceeds, the
Company or such Restricted Subsidiary may temporarily reduce Indebtedness under
a revolving credit facility, if any, or otherwise invest such Net Proceeds in
Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset
Sale that are not applied as provided and within the time period set forth in
the first sentence of this paragraph shall be deemed to constitute "Excess
Proceeds". When the aggregate amount of Excess Proceeds exceeds $15,000,000, the
Company shall make an offer to all Holders of Securities (an "Asset Sale Offer")
to purchase the maximum principal amount of Securities, that is an integral
multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and liquidated damages, if any, to the date fixed
for the closing of such offer, in accordance with the procedures set forth in
this Section 4.06. The Company will commence an Asset Sale Offer with respect to
Excess Proceeds within ten Business Days after the date that Excess Proceeds
exceeds $15,000,000 by mailing the notice required pursuant to Section
4.06(c)(1). To the extent that the aggregate amount of Securities tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the
aggregate principal amount of Securities surrendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Securities to be
purchased in the manner described in Section 4.06(c)(3). Upon completion of any
such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) (1) Promptly, and in any event within ten Business Days
after the Company becomes obligated to make an Asset Sale Offer, the Company
shall deliver to the Trustee and send, by first-class mail, postage prepaid, to
each Holder at such Holder's registered address, a written notice stating that
the Holder may elect to have his Securities purchased by the Company either in
whole or in part (subject to prorating as hereinafter described in the event the
Asset Sale Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall be mailed at least 30
but not more than 60 days before the purchase date and shall contain such
information concerning the business of the Company which the Company in good
faith believes will enable such Holders to make an informed decision (which at a
minimum shall include (i) the most recently filed annual report on Form 10-K (or
any successor or comparable form) (including audited consolidated financial
statements) of the Company, the most recent subsequently filed quarterly report
on Form 10-Q (or any successor or comparable form) of the Company and any
current report on Form 8-K (or any successor or comparable form) of the Company
filed subsequent to such quarterly report, other than current reports describing
Asset Sales otherwise described in the offering materials, (ii) a description of
material developments in the Company's business subsequent to the date of the
latest of such reports, and (iii) if material, appropriate pro forma financial
information) and all instructions and materials necessary to tender Secur ities
pursuant to the Asset Sale Offer, together with the address referred to in
Section 4.06(c)(3) below. If any Security is to be purchased in part only, any
notice of purchase that relates to such
41
Security shall state the portion of the principal amount thereof that has been
or is to be purchased.
(2) Not later than the date upon which written notice of an
Asset Sale Offer is delivered to the Trustee as provided above, the Company
shall deliver to the Trustee an Officers' Certificate as to (i) the amount of
the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset
Sales pursuant to which such Asset Sale Offer is being made and (iii) the
compliance of such allocation with the provisions of Section 4.06(b). On such
date, the Company shall also irrevocably deposit with the Trustee or with a
paying agent (or, if the Company is acting as its own paying agent, segregate
and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash
Equivalents and to be held for payment in accordance with the provisions of this
Section 4.06. Upon the expiration of the period for which the Offer remains open
(the "Offer Period"), the Company shall deliver to the Trustee for cancelation
the Securities or portions thereof that have been properly tendered to and are
to be accepted by the Company. The Trustee (or the Paying Agent, if not the
Trustee) shall, on the date of purchase, mail or deliver payment to each
tendering Holder in the amount of the purchase price. In the event that the
Excess Proceeds delivered by the Company to the Trustee is greater than the
purchase price of the Securities tendered, the Trustee shall deliver the excess
to the Company immediately after the expiration of the Offer Period for
application in accordance with Section 4.06(b) above.
(3) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered by the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer
than the Company is required to purchase, selection of such Securities for
purchase shall be made by the Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed, or if such Securities are not so listed, on a pro rata basis, by lot or
by such other method as the Trustee shall deem fair and appropriate (and in such
manner as complies with applicable legal requirements); provided that no
Securities of $1,000 or less shall be purchased in part. A new Security in
principal amount equal to the unpurchased portion of any Security purchased in
part will be issued in the name of the Holder thereof upon cancelation of the
original Security. On and after the purchase date unless the Company defaults in
payment of the purchase price, interest shall cease to accrue on Securities or
portions thereof purchased.
(d) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations to
the extent such laws or regulations are applicable in connection with the
repurchase of the Securities pursuant to an Asset Sale Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described in this Indenture by virtue thereof.
42
SECTION 4.07. Transactions with Affiliates. (a) The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction or series of
transactions, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Company (each of the
foregoing, an "Affiliate Transaction") involving aggregate consideration in
excess of $2,500,000, unless (i) such Affiliate Transaction is on terms that are
not materially less favorable to the Company or the relevant Restricted
Subsidiary than those that could have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person and (ii)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10,000,000, the
Company delivers to the Trustee a resolution adopted by the majority of the
Board of Directors of the Company, approving such Affiliate Transaction and set
forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above.
(b) The provisions of Section 4.07(a) shall not apply to the
following: (i) transactions between or among the Company and/or any of its
Restricted Subsidiaries; (ii) Permitted Investments and Restricted Payments
permitted by Section 4.04; (iii) the payment of annual management, consulting,
monitoring and advisory fees to Blackstone or GE Capital in an amount not to
exceed $1,500,000 in any calendar year and any related out-of-pocket expenses;
(iv) the payment of reasonable and customary fees paid to, and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Company or any Restricted Subsidiary; (v) payments by the Company or any of its
Restricted Subsidiaries to Blackstone or GE Capital, made for any financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in connection with
acquisitions or divestitures, which payments are approved by a majority of the
Board of Directors of the Company in good faith; (vi) transactions in which the
Company or any of its Restricted Subsidiaries, as the case may be, delivers to
the Trustee a letter from an Independent Financial Advisor stating that such
transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view or meets the requirements of clause (i) Section 4.07(a)
hereof; (vii) payments or loans to employees or consultants in the ordinary
course of business which are approved by a majority of the Board of Directors of
the Company in good faith; (viii) any agreement as in effect as of the Closing
Date or any amendment thereto (so long as any such amendment is not
disadvantageous to the holders of the Securities in any material respect) or any
transaction contemplated thereby; (ix) the existence of, or the performance by
the Company or any of its Restricted Subsidiaries of its obligations under the
terms of, any stockholders agreement (including any registration rights
agreement or purchase agreement related thereto) to which it is a party as of
the Closing Date and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by the Company or
any of its Restricted Subsidiaries of its obligations under any future amendment
to any such existing agreement or under any similar agreement entered into after
the Closing Date shall only be permitted by this clause (ix) to the extent that
the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Holders of the Securities in any material respect; (x)
the payment of all fees and expenses related to the Transactions, including fees
to Blackstone; (xi) transactions with customers, clients, suppliers or
purchasers or sellers of goods or services, in each case in the ordinary course
of business and otherwise in compliance with the terms of this Indenture, which
are fair to the Company and its
43
Restricted Subsidiaries in the reasonable determination of the Board of
Directors or the senior management of the Company, or are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party; and (xii) the issuance of Capital Stock (other than
Disqualified Stock) of the Company or Volume Holdings to any Permitted Holder.
SECTION 4.08. Liens. This Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
Incur or suffer to exist any Lien on any asset or property of the Company or
such Restricted Subsidiary, or any income or profits therefrom, or assign or
convey any right to receive income therefrom, that secures any obligations of
the Company or any of its Subsidiaries (other than Senior Indebtedness) unless
the Securities are equally and ratably secured with (or on a senior basis to, in
the case of obligations subordinated in right of payment to the Securities) the
obligations so secured or until such time as such obligations are no longer
secured by a Lien. The preceding sentence shall not require the Company or any
Restricted Subsidiary to secure the Securities if the Lien consists of a
Permitted Lien.
No Guarantor shall directly or indirectly create, Incur or
suffer to exist any Lien on any asset or property of such Guarantor or any
income or profits therefrom, or assign or convey any right to receive income
therefrom, that secures any obligation of such Guarantor (other than Senior
Indebtedness of such Guarantor) unless the Guarantee of such Guarantor is
equally and ratably secured with (or on a senior basis to, in the case of
obligations subordinated on right of payment to such Guarantor's Guarantee) the
obligations so secured or until such time as such obligations are no longer
secured by a Lien. The preceding sentence shall not require any Guarantor to
secure its Guarantee if the Lien consists of a Permitted Lien.
SECTION 4.09. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require that the Company repurchase all or
any part of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount thereof, plus accrued and unpaid interest and liquidated
damages, if any, to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the terms contem plated in Section
4.09(b); provided, however, that notwithstanding the occurrence of a Change of
Control, the Company shall not be obligated to purchase the Securities pursuant
to this Section 4.09 in the event that it has exercised its right to redeem all
the Securities pursuant to paragraph 5 of the Securities. In the event that at
the time of such Change of Control the terms of the Bank Indebtedness restrict
or prohibit the repurchase of Securities pursuant to this Section 4.09, then
prior to the mailing of the notice to Holders provided for in Section 4.09(b)
below but in any event within 30 days following any Change of Control, the
Company shall (i) repay in full all Bank Indebtedness or offer to repay in full
all Bank Indebtedness and repay the Bank Indebtedness of each lender who has
accepted such offer or (ii) obtain the requisite consent under the agreements
governing the Bank Indebtedness to permit the repurchase of the Securities as
provided for in Section 4.09(b).
44
(b) Within 30 days following any Change of Control (except as
provided in Section 4.09(a)), the Company shall mail a notice to each Holder
with a copy to the Trustee (the "Change of Control Offer") stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase such Holder's
Securities at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest and liquidated
damages, if any, to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due
on the relevant interest payment date);
(2) the circumstances and relevant facts and financial
information regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent
with this Section 4.09, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Securities which were
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Securities purchased.
(d) On the purchase date, all Securities purchased by the
Company under this Section 4.09 shall be delivered to the Trustee for
cancelation, and the Company shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section
4.09, the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in Section 4.09(b) applicable to a Change of Control Offer made by the Company
and purchases all Securities validly tendered and not withdrawn under such
Change of Control Offer.
(f) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.09. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.09, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.09 by virtue
thereof.
SECTION 4.10. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company commencing
45
with the fiscal year ending on December 28, 1999, an Officers' Certificate
stating that in the course of the performance by the signers of their duties as
Officers of the Company they would normally have knowledge of any Default and
whether or not the signers know of any Default that occurred during such period.
If they do, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with Section 314(a)(4) of the TIA.
SECTION 4.11. Further Instruments and Acts. Upon request of
the Trustee, the Company shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.12. Future Guarantors. The Company shall cause each
Restricted Subsidiary organized under the laws of the United States of America
or any state or territory thereof that Incurs Indebtedness or issues shares of
Disqualified Stock or Preferred Stock to execute and deliver to the Trustee a
supplemental indenture in the form of Exhibit C hereto pursuant to which such
Subsidiary shall guarantee payment of the Securities.
ARTICLE 5
Successor Company
SECTION 5.01. (a) Merger, Consolidation or Sale of All or
Substantially All Assets. The Company shall not consolidate or merge with or
into or wind up into (whether or not the Company is the surviving corporation),
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to any Person unless:
(i) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a corporation,
partnership or limited liability company organized or existing under
the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (the Company or such Person, as the
case may be, being herein called the "Successor Company");
(ii) the Successor Company (if other than the Company)
expressly assumes all the obligations of the Company under this
Indenture and the Securities pursuant to a supplemental indenture or
other documents or instruments in form reasonably satisfactory to the
Trustee;
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any of its Restricted Subsidiaries as a result of such
transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction) no Default or
Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such
transaction, as if such transaction had occurred at the beginning of
the applicable four-quarter
46
period, either (A) the Successor Company would be permitted to Incur at
least $1.00 of additional Indebtedness pursuant to Section 4.03(a)
hereof or (B) the Fixed Charge Coverage Ratio for the Successor Company
and its Restricted Subsidiaries would be greater than such ratio for
the Company and its Restricted Subsidiaries immediately prior to such
transaction;
(v) each Guarantor, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person's obligations
under this Indenture and the Securities; and
(vi) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Successor Company shall succeed to, and be substituted
for, the Company under this Indenture and the Securities. Notwithstanding the
foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate
with, merge into or transfer all or part of its properties and assets to the
Company or to another Restricted Subsidiary and (b) the Company may merge with
an Affiliate incorporated solely for the purpose of reincorporating the Company
in another state of the United States so long as the amount of Indebtedness of
the Company and its Restricted Subsidiaries is not increased thereby.
(b) Subject to Section 11.02(b) hereof governing the release
of a Guarantee upon the sale or disposition of a Guarantor that is a Subsidiary
of the Company, each Guarantor shall not, and the Company shall not permit a
Guarantor to, consolidate or merge with or into or wind up into (whether or not
such Guarantor is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, any Person unless:
(i) such Guarantor is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than
such Guarantor) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a corporation,
partnership or limited liability company organized or existing under
the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (such Guarantor or such Person, as
the case may be, being herein called the "Successor Guarantor");
(ii) the Successor Guarantor (if other than such Guarantor)
expressly assumes all the obligations of such Guarantor under this
Indenture and such Guarantors's Guarantee pursuant to a supplemental
indenture or other documents or instruments in form reasonably
satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any of its Subsidiaries as a result of such transaction as
having been Incurred by the Successor Guarantor or such Subsidiary at
the time of such transaction) no Default or Event of Default shall have
occurred and be continuing; and
47
(iv) the Guarantor shall have delivered or caused to be
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this Indenture.
Subject to Section 11.02(b), the Successor Guarantor shall
succeed to, and be substituted for, such Guarantor under this Indenture and such
Guarantor's Guarantee. Notwithstanding the foregoing clause (iii), a Guarantor
may merge with an Affiliate incorporated solely for the purpose of
reincorporating such Guarantor in another state of the United States so long as
the amount of Indebtedness of the Guarantor is not increased thereby.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(1) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, whether or not such
payment shall be prohib ited by Article 10, and such default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal or
premium, if any, of any Security when the same becomes due and payable
at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise, whether or not such payment
shall be prohibited by Article 10;
(3) the Company fails to comply with Section 5.01 hereof;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09 or 4.12 (other than a failure to purchase
Securities when required under Section 4.06 or 4.09) and such failure
continues for 30 days after the notice specified below;
(5) the Company fails to comply with any of its agreements in
the Securities or this Indenture (other than those referred to in (1),
(2), (3) or (4) above) and such failure continues for 60 days after the
notice specified below;
(6) Indebtedness of the Company or any Subsidiary (other than
Indebtedness owing to the Company or a Restricted Subsidiary) is not
paid within any applicable grace period after final maturity or the
acceleration by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $15,000,000
or its foreign currency equivalent;
(7) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
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(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 any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of the
property of the Company or any Significant Subsidiary; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money (other
than judgments which are covered by enforceable insurance policies
issued by solvent carriers) in excess of $15,000,000 or its foreign
currency equivalent against the Company or a Significant Subsidiary and
either (A) an enforcement proceeding thereon has been commenced by any
creditor upon such judgment or decree or (B) there is a period of 60
days following the entry of such judgment or decree during which such
judgment or decree is not discharged, waived or the execution thereof
stayed; or
(10) any Guarantee ceases to be in full force and effect
(except as contemplated by the terms thereof) or any Guarantor or
Person acting by or on behalf of such Guarantor denies or disaffirms
its obligations under this Indenture or any Guarantee and such Default
continues for 10 days.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
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A Default under clause (4) or (5) above is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities notify the Company of the Default and the Company
does not cure such Default within the time specified in clause (4) or (5), as
the case may be, after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6) or (10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9), its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Company, may declare the principal of, premium, if any, and
accrued but unpaid interest on all the Securities to be due and payable. Upon
such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company occurs, the principal of, premium, if any, and interest
on all the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in principal amount of the Securities
by notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpay ment of principal or
interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder 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 acquies cence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may on behalf of the Holders of all such Securities waive an existing
Default or an Event of Default and its consequences except (i) a continuing
Default or an Event of Default in the payment of the principal of or interest on
a Security, (ii) a Default or an Event of Default arising from the failure to
redeem or purchase any Security when required pursuant to the terms of this
Indenture or (iii) a Default or an Event of Default in respect of a provision
that under Section 9.02 cannot be amended without the consent of each
Securityholder affected. In the event of any Event of Default specified in
Section 6.01(4), such Event of Default and all consequences thereof (including
without limitation any acceleration or resulting
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payment default) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or the Holders, if within 20 days after such
Event of Default arose (x) the Indebtedness or guarantee that is the basis for
such Event of Default has been discharged, or (y) the holders thereof have
rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default, or (z) if the default that is the basis
for such Event of Default has been cured. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemni fication
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06. Limitation on Suits. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and liquidated damages and interest on the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
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SECTION 6.08. Collection Suit by Trustee. If an Event of
Default speci fied in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, any Subsidiary or
Guarantor, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company to
the extent required by Article 10;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, and any liquidated
damages without preference or priority of any kind, according to the
amounts due and payable on the Securi ties for principal, any
liquidated damages and interest, respectively; and
FOURTH: to the Company or any other obligor on the
Securities..
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each Securityholder and the
Company a notice that states the record date, the payment date and amount to be
paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in principal amount of the Securities.
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SECTION 6.12. Waiver of Stay or Extension Laws. Neither the
Company nor any Guarantor (to the extent it may lawfully do so) shall at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Guarantor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
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(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
(g) In case an Event of Default occurs and is continuing, the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture,
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unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might reasonably be
incurred by it in compliance with such request or direction.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar or co-paying
agent may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and is actually known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within the earlier of 90 days after it
occurs or 30 days after it is actually known to a Trust Officer or written
notice of it is received by the Trustee. Except in the case of a Default in
payment of principal of, premium (if any) or interest on any Security, the
Trustee may withhold notice if and so long as a committee of its Trust Officers
in good faith determines that withholding notice is in the interests of
Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of July 15 that
complies with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Guarantor, jointly and severally, shall indemnify
the Trustee against any and all loss, liability or expense (including reasonable
attorneys' fees) incurred by or in connection with the administration of this
trust and the performance of its duties hereunder. The Trustee shall notify the
Company of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; provided, however, that any failure so to notify the
Company shall not relieve the Company or any Guarantor of its indemnity
obligations hereunder. The Company shall defend the claim and the indemnified
party shall provide reasonable cooperation at the Company's expense in the
55
defense of such claim. Such indemnified parties may together have one separate
counsel and the Company and the Guarantors, as applicable shall pay the fees and
expenses of such counsel; provided, however, that the Company shall not be
required to pay such fees and expenses if it assumes such indemnified parties'
defense and, in such indemnified parties' reasonable judgment, there is no
conflict of interest between the Company and the Guarantors, as applicable, and
such parties in connection with such defense. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party's own wilful misconduct, negligence or bad
faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest and any liquidated damages on particular
Securities.
The Company's payment obligations pursuant to this Section
shall survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(7) or (8) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
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 Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
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If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
57
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.08 or paid or
Securities for which payment money has heretofore been deposited in trust
pursuant to this Article 8) for cancelation or (ii) all outstanding Securities
not theretofore delivered for cancelation have become due and payable, whether
at maturity or as a result of the mailing of a notice of redemption pursuant to
Article 3 hereof or will become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice in the name and at the expense of the Company,
and the Company or any Guarantor irrevocably deposits or causes to be deposited
with the Trustee funds or U.S. Government Obligations on which payment of
principal and interest when due will be sufficient to pay at maturity or upon
redemption all outstanding Securities, including interest thereon to maturity or
such redemption date (other than Securities replaced pursuant to Section 2.08),
and if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all of its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.12 and the
operation of Section 5.01(a)(iv), 6.01(4), 6.01(6), 6.01(7) (with respect to
Subsidiaries of the Company only), 6.01(8) (with respect to Subsidiaries of the
Company only) and 6.01(9) ("covenant defeasance option"). The Company may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option. In the event that the Company terminates all of its
obligations under the Securities and this Indenture by exercising its legal
defeasance option, the obligations under the Guarantees shall each be terminated
simultaneously with the termination of such obligations.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exer cises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(4),
6.01(6), 6.01(7) (with respect to Significant Subsidiaries of the Company only),
6.01(8) (with respect to Significant Subsidiaries of the Company only) or
6.01(9) or because of the failure of the Company to comply with clause (iv) of
Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
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SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal,
premium (if any) and interest on the Securities to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
material agreement binding on the Company and is not prohibited by
Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that,
subject to customary assumptions and exclusions, (i) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, subject to customary assumptions and exclusions, the
Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not
occurred;
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that, subject to customary assumptions and exclusions, the
Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred; and
(8) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel (which Opinion of Counsel may be
subject to customary assumptions and exclusions), each stating that all
conditions precedent to the defeasance and discharge of the Securities
as contemplated by this Article 8 have been complied with.
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Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities. Money
and securities so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Securityholders entitled to the money must look to
the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
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(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 or Article 12 that would
limit or terminate the benefits available to any holder of Senior
Indebtedness (or Representatives therefor) under Article 10 or Article
12;
(5) to add additional Guarantees with respect to the
Securities or to secure the Securities;
(6) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(7) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(8) to make any change that does not adversely affect the
rights of any Securityholder; or
(9) to provide for the issuance of the Exchange Securities,
Private Exchange Securities or Additional Securities, which shall have
terms substantially identical in all material respects to the Original
Securities (except that the transfer restrictions contained in the
Original Securities shall be modified or eliminated, as appropriate),
and which shall be treated, together with any outstanding Original
Securities, as a single issue of securities.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company, the
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including consents obtained in
61
connection with a tender offer or exchange for the Securities), and any existing
Default (subject to Article 6) or compliance with any provision of this
Indenture or the Securities may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Securities (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for Securities). However, without the consent of each Securityholder
affected, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of
any Security;
(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any change in Article 10 or Article 12 that adversely
affects the rights of any Securityholder under Article 10 or Article
12;
(7) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02; or
(8) modify the Guarantees in any manner adverse to the
Holders; or
(9) impair the right of any Holder to receive payment of
principal of, or interest on such Holder's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
An amendment or waiver under this Section 9.02 may not make
any change that adversely affects the rights under Article 10 or Article 12 of
any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment or waiver under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly describing
such amendment or waiver. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment or waiver under this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
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SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate from the Company certifying that the requisite number of consents
has been received. After an amendment or waiver becomes effective, it shall bind
every Securityholder. An amendment or waiver becomes effective upon the (i)
receipt by the Company or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
an indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Company
and the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
that such amendment is the legal, valid and binding obligation of the Company
and the Guarantors enforceable against them in accordance with its terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders
63
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate. The Company agrees,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article 10, to the prior payment in full of
all existing and future Senior Indebtedness of the Company and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness. The Securities shall in all respects rank pari passu in
right of payment with all existing and future Pari Passu Indebtedness of the
Company and shall rank senior in right of payment to all existing and future
Subordinated Indebtedness of the Company; and only Indebtedness of the Company
that is Senior Indebtedness of the Company shall rank senior to the Securities
in accordance with the provisions set forth herein. For purposes of this Article
10, the Indebtedness evidenced by the Securities shall be deemed to include the
liquidated damages payable pursuant to the provisions set forth in the
Securities and the Registration Agreement. All provisions of this Article 10
shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or dissolution of the Company or reorganization of or
similar proceeding relating to the Company or its property, the holders of
Senior Indebtedness of the Company shall be entitled to receive payment in full
of the Senior Indebtedness of the Company before the Securityholders are
entitled to receive any payment and until the Senior Indebtedness is paid in
full, any payment or distribution to which Securityholders would be entitled but
for this Article 10 shall be made to holders of the Senior Indebtedness of the
Company as their interests may appear (except that Securityholders may receive
and retain (i) Permitted Junior Securities and (ii) payments made from the trust
described under Section 8.01 so long as, on the date or dates the respective
amounts were paid into the trust, such payments were made with respect to the
Securities without violating this Article 10). If a distribution is made to
Securityholders that due to this Article 10 should not have been made to them,
such Securityholders are required to hold it in trust for the holders of Senior
Indebtedness and pay it over to them as their interests may appear.
SECTION 10.03. Default on Senior Indebtedness. The Company may
not pay the principal of, premium (if any) or interest on, the Securities or
make any deposit pursuant to Section 8.01 and may not otherwise purchase, redeem
or otherwise retire any Securities (except that Holders may receive and retain
(a) Permitted Junior Securities and (b) payments made from the trust described
in Section 8.01) (collectively, "pay the Securities") if (i) a default in the
payment of the principal of, premium, if any, or interest on any Designated
Senior Indebtedness of the Company occurs and is continuing or any other amount
owing in respect of any Designated Senior Indebtedness of the Company is not
paid when due, or (ii) any other default on Designated Senior Indebtedness of
the Company occurs and the maturity of such Designated Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, (x) the default
has been cured or
64
waived and any such acceleration has been rescinded or (y) such Designated
Senior Indebtedness has been paid in full. However, the Company may pay the
Securities without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of such
Designated Senior Indebtedness with respect to which either of the events set
forth in clause (i) or (ii) of the immediately preceding sentence has occurred
and is continuing. During the continuance of any default (other than a default
described in clause (i) or (ii) of the second preceding sentence) with respect
to any Designated Senior Indebtedness of the Company pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, the Company may not pay the Securities for a
period (a "Payment Blockage Period") commencing upon the receipt by the Trustee
(with a copy to the Company) of written notice (a "Blockage Notice") of such
default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated (i) by
written notice to the Trustee and the Company from the Person or Persons who
gave such Blockage Notice, (ii) by repayment in full of such Designated Senior
Indebtedness or (iii) because the default giving rise to such Blockage Notice is
no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section 10.03 and Section 10.02), unless the holders of
such Designated Senior Indebtedness or the Representative of such holders shall
have accelerated the maturity of such Designated Senior Indebtedness, the
Company may resume payments on the Securities after the end of such Payment
Blockage Period. Not more than one Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness of the Company during such period. However, if
any Blockage Notice within such 360-day period is given by or on behalf of any
holders of Designated Senior Indebtedness of the Company other than the Bank
Indebtedness, the Representative of the Bank Indebtedness may give one
additional Blockage Notice within such period. In no event, however, may the
total number of days during which any Payment Blockage Period or Periods is in
effect exceed 179 days in the aggregate during any 360 consecutive day period.
For purposes of this Section 10.03, no default or event of default that existed
or was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Designated Senior Indebtedness of the Company initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness of the Company (or their Representative) of the
acceleration. If any Designated Senior Indebtedness of the Company is
outstanding, the Company may not pay the Securities until five Business Days
after such holders or the Representative of such Designated Senior Indebtedness
receive notice of such acceleration and, thereafter, may pay the Securities only
if this Article 10 otherwise permits payment at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article 10 should
not have been made to
65
them, the Securityholders who receive the distribution shall hold it in trust
for holders of Senior Indebtedness of the Company and pay it over to them as
their respective interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of
the Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article 10 to holders of such Senior Indebtedness
of the Company which otherwise would have been made to Securityholders is not,
as between the Company and Securityholders, a payment by the Company on such
Senior Indebtedness.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Securityholders and holders of Senior Indebtedness of the
Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on and liquidated damages in respect of, the
Securities in accordance with their terms; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default, subject to the rights of holders
of Senior Indebtedness of the Company to receive distributions
otherwise payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article 10. The Company, the Registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of the Company may give the
notice; provided, however, that, if an issue of Senior Indebtedness of the
Company has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of the Company with the same rights it would have if it were
not Trustee. The Registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to any Senior Indebtedness of the Company which may at
any time be held by it, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the
66
Company, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Security holders or the Trustee to accelerate the
maturity of the Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 by the Trustee for
the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness of the Company or
subject to the restrictions set forth in this Article 10, and none of the
Securityholders shall be obligated to pay over any such amount to the Company or
any holder of Senior Indebtedness of the Company or any other creditor of the
Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article 10, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Security holder by accepting a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of the Company as provided in this Article 10 and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other
67
Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
such Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
SECTION 10.17. Trustee's Compensation Not Prejudiced. Nothing
in this Article shall apply to amounts due to the Trustee pursuant to other
sections of this Indenture.
SECTION 10.18. Defeasance. The terms of this Article 10 shall
not apply to payments from money or the proceeds of U.S. Government Obligations
held in trust by the Trustee for the payment of principal of and interest on the
Securities pursuant to the provisions described in Section 8.03.
ARTICLE 11
Guarantees
SECTION 11.01. Guarantees. Each Guarantor hereby jointly and
severally irrevocably and unconditionally guarantees, as a primary obligor and
not merely as a surety, to each Holder and to the Trustee and its successors and
assigns (a) the full and punctual payment when due, whether at Stated Maturity,
by acceleration, by redemption or otherwise, of all obligations of the Company
under this Indenture (including obligations to the Trustee) and the Securities,
whether for payment of principal of, interest on or liquidated damages in
respect of the Securities and all other monetary obligations of the Company
under this Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company whether for expenses, indemnification or otherwise under this Indenture
and the Securities (all the foregoing being hereinafter collectively called the
"Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from each such Guarantor, and that each such Guarantor shall
remain bound under this Article 11 notwithstanding any extension or renewal of
any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Securities or the Guaranteed Obligations. The obligations of each
Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this
68
Indenture, the Securities or any other agreement or otherwise; (b) any extension
or renewal of any thereof; (c) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or the Trustee for
the Guaranteed Obligations or any of them; (e) the failure of any Holder or
Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (f) any change in the ownership of such Guarantor,
except as provided in Section 11.02(b).
Each Guarantor hereby waives any right to which it may be
entitled to have its obligations hereunder divided among the Guarantors, such
that such Guarantor's obligations would be less than the full amount claimed.
Each Guarantor hereby waives any right to which it may be entitled to have the
assets of the Company first be used and depleted as payment of the Company's or
such Guarantor's obligations hereunder prior to any amounts being claimed from
or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Company be sued prior to an action
being initiated against such Guarantor.
Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
The Guarantee of each Guarantor is, to the extent and in the
manner set forth in Article 12, subordinated and subject in right of payment to
the prior payment in full of the principal of and premium, if any, and interest
on all Senior Indebtedness of the relevant Guarantor and is made subject to such
provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 11.02 and
11.06, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Securities or any other agreement, by any waiver or modification of any thereof,
by any default, failure or delay, wilful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Guarantor or would otherwise operate as a discharge of any Guarantor as a
matter of law or equity.
Each Guarantor agrees that its Guarantee shall remain in full
force and effect until payment in full of all the Guaranteed Obligations. Each
Guarantor further agrees that its Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue
69
hereof, upon the failure of the Company to pay the principal of or interest on
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to
be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid principal amount of such Guaranteed Obligations then due and
owing, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only
to the extent not prohibited by law) and (iii) all other monetary obligations of
the Company to the Holders and the Trustee.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations and all obligations to which the Guaranteed Obligations are
subordinated as provided in Article 12. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of any Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y)
in the event of any declaration of acceleration of such Guaranteed Obligations
as provided in Article 6, such Guaranteed Obligations (whether or not due and
payable) shall forthwith become due and payable by such Guarantor for the
purposes of this Section 11.01.
Each Guarantor also agrees to pay any and all reasonable costs
and expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 11.01.
Upon request of the Trustee, each Guarantor shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
SECTION 11.02. Limitation on Liability. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum,
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that, after giving effect to all
other contingent and fixed liabilities of such Guarantor (including, without
limitation, any guarantees under the Credit Agreement) and after giving effect
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 Guarantee or
pursuant to its contribution obligations under this Indenture, can be hereby
guaranteed without rendering this Indenture, as it relates to such Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
(b) A Guarantee as to any Guarantor that is a Subsidiary of
the Company shall terminate and be of no further force or effect and such
Guarantor shall be deemed to be released from all obligations under this Article
11 upon (i) the merger or consolidation of such Guarantor with or into any
Person other than the Company or a Subsidiary or Affiliate of the Company where
such Guarantor is not the surviving entity of such consolidation or merger or
(ii) the sale by the Company or any Subsidiary of the Company (or any pledgee of
the Company) of the Capital Stock of such Guarantor, where, after such sale,
such Guarantor is no longer a Subsidiary of the Company;
70
provided, however, that each such merger, consolidation or sale (or, in the case
of a sale by such a pledgee, the disposition of the proceeds of such sale) shall
comply with Section 4.06 and Section 5.01(b). At the request of the Company, the
Trustee shall execute and deliver an appropriate instrument evidencing such
release.
SECTION 11.03. Successors and Assigns. This Article 11 shall
be binding upon each Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 11 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 11
at law, in equity, by statute or otherwise.
SECTION 11.05. Modification. No modification, amendment or
waiver of any provision of this Article 11, nor the consent to any departure by
any Guarantor therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Trustee, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice to or demand on any Guarantor in any case shall entitle such Guarantor
to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 11.06. Execution of Supplemental Indenture for Future
Guarantors. Each Subsidiary which is required to become a Guarantor pursuant to
Section 4.12 hereof shall promptly execute and deliver to the Trustee a
supplemental indenture substantially in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Guarantor under this Article 11 and shall
guarantee the Guaranteed Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms.
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ARTICLE 12
Subordination of the Guarantees
SECTION 12.01. Agreement To Subordinate. Each Guarantor
agrees, and each Securityholder by accepting a Security agrees, that the
obligations of a Guarantor hereunder are subordinated in right of payment, to
the extent and in the manner provided in this Article 12, to the prior payment
in full of all existing and future Senior Indebtedness of such Guarantor and
that the subordination is for the benefit of and enforceable by the holders of
such Senior Indebtedness of such Guarantor. The obligations hereunder with
respect to a Guarantor shall in all respects rank pari passu in right of payment
with all existing and future Pari Passu Indebtedness of such Guarantor and shall
rank senior in right of payment to all existing and future Subordinated
Indebtedness of such Guarantor; and only Indebtedness of such Guarantor that is
Senior Indebtedness of such Guarantor shall rank senior to the obligations of
such Guarantor in accordance with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of a Guarantor to creditors upon a total
or partial liquidation or dissolution of such Guarantor or reorganization of or
similar proceeding relating to such Guarantor and its properties, the holders of
Senior Indebtedness of such Guarantor shall be entitled to receive payment in
full of such Senior Indebtedness of such Guarantor before Securityholders are
entitled to receive any payment and until the Senior Indebtedness of such
Guarantor is paid in full, any payment or distribution to which Securityholders
would be entitled but for this Article 12 shall be made to holders of such
Senior Indebtedness of such Guarantor as their interests may appear. If a
distribution is made to Securityholders that due to this Article 12 should not
have been made to them, such Securityholders are required to hold it in trust
for the holders of Senior Indebtedness of such Guarantor and pay it over to them
as their interests may appear (except that Securityholders may receive and
retain (i) Permitted Junior Securities and (ii) payments made from the trust
described under Section 8.01 so long as, on the date or dates the respective
amounts were paid into the trust, such payments were made with respect to the
Securities without violating this Article 12).
SECTION 12.03. Default on Designated Senior Indebtedness of a
Guarantor. A Guarantor may not make any payment pursuant to any of the
Guaranteed Obligations and may not otherwise purchase, redeem or otherwise
retire any Securities (collectively, "pay its Guarantee") if (i) a default in
the payment of the principal of, premium, if any, or interest on any Designated
Senior Indebtedness of such Guarantor occurs and is continuing or any other
amount owing in respect of any Designated Senior Indebtedness of such Guarantor
is not paid when due, or (ii) any other default on Designated Senior
Indebtedness of such Guarantor occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such acceleration has been
rescinded or (y) such Designated Senior Indebtedness has been paid in full.
However, such Guarantor may pay its Guarantee without regard to the foregoing if
such Guarantor and the Trustee receive written notice approving such payment
from the Representative of such Designated Senior Indebtedness with respect to
which either of the events in clause (i) or (ii) of the immediately preceding
sentence has occurred and is continuing. During the continuance of any default
(other than a default described in clause (i) or (ii) of the second preceding
sentence) with respect to any Designated Senior Indebtedness of
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a Guarantor pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods,
such Guarantor may not pay its Guarantee for a period (a "Guarantee Payment
Blockage Period") commencing upon the receipt by the Trustee (with a copy to
such Guarantor and the Company) of written notice (a "Guarantee Blockage
Notice") of such default from the Representative of such Designated Senior
Indebtedness specifying an election to effect a Guarantee Payment Blockage
Period and ending 179 days thereafter (or earlier if such Guarantee Payment
Blockage Period is terminated (i) by written notice to the Trustee (with a copy
to such Guarantor and the Company) from the Person or Persons who gave such
Guarantee Blockage Notice, (ii) because such Designated Senior Indebtedness has
been repaid in full or (iii) because the default giving rise to such Guarantee
Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 12.03 and in Section 12.02),
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, such Guarantor may resume payments on its Guarantee after such
Guarantee Payment Blockage Period, including any missed payments. Not more than
one Guarantee Blockage Notice may be given with respect to a Guarantor in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness of such Guarantor during such period.
SECTION 12.04. Demand for Payment. If payment of the
Securities is accelerated because of an Event of Default and a demand for
payment is made on a Guarantor pursuant to Article 11, the Trustee shall
promptly notify the holders of the Designated Senior Indebtedness of such
Guarantor (or the Representative of such holders) of such demand. If any
Designated Senior Indebtedness of such Guarantor is outstanding, such Guarantor
may not pay its Guarantee until five Business Days after such holders or the
Representative of the holders of the Designated Senior Indebtedness of such
Guarantor receive notice of such demand and, thereafter, may pay its Guarantee
only if this Article 12 otherwise permits payment at that time.
SECTION 12.05. When Distribution Must Be Paid Over. If a
payment or distribution is made to Securityholders that because of this Article
12 should not have been made to them, the Securityholders who receive the
payment or distribution shall hold such payment or distribution in trust for
holders of the Senior Indebtedness of the relevant Guarantor and pay it over to
them as their respective interests may appear.
SECTION 12.06. Subrogation. After all Designated Senior
Indebtedness of a Guarantor is paid in full and until the Securities are paid in
full in cash, Securityholders shall be subrogated to the rights of holders of
Senior Indebtedness of such Guarantor to receive distributions applicable to
Senior Indebtedness of such Guarantor. A distribution made under this Article 12
to holders of Senior Indebtedness of such Guarantor which otherwise would have
been made to Securityholders is not, as between such Guarantor and
Securityholders, a payment by such Guarantor on such Senior Indebtedness.
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SECTION 12.07. Relative Rights. This Article 12 defines the
relative rights of Securityholders and holders of Senior Indebtedness of a
Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Guarantor and Securityholders, the
obligation of a Guarantor which is absolute and unconditional, to make
payments with respect to the Guaranteed Obligations to the extent set
forth in Article 11; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by a Guarantor under its
obligations with respect to the Guaranteed Obligations, subject to the
rights of holders of Senior Indebtedness of such Guarantor to receive
distributions otherwise payable to Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by a
Guarantor. No right of any holder of Senior Indebtedness of a Guarantor to
enforce the subordination of the obligations of such Guarantor hereunder shall
be impaired by any act or failure to act by such Guarantor or by its failure to
comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or the Paying Agent may continue to
make payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article 12. A Guarantor, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Indebtedness of a Guarantor
may give the notice; provided, however, that if an issue of Senior Indebtedness
of a Guarantor has a Representative, only the Representative may give the
notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of a Guarantor with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 12 with respect to any Senior Indebtedness of a Guarantor which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness of such Guarantor; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 12 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of a Guarantor, the distribution may be made and the notice given
to their Representative (if any).
SECTION 12.11. Article 12 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure of a Guarantor to make a payment on any
of its obligations by reason of any provision in this Article 12 shall not be
construed as preventing the occurrence of a default by such Guarantor under such
obligations. Nothing in this Article 12 shall have any effect on the right of
the Securityholders or the Trustee to make a demand for payment on a Guarantor
pursuant to Article 11.
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SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness of a Guarantor for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness of a Guarantor and other Indebtedness of a Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 12. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of a Guarantor to
participate in any payment or distribution pursuant to this Article 12, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of such
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 12, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 12.
SECTION 12.13. Trustee To Effectuate Subordination. Each
Security holder by accepting a Security authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Securityholders and the
holders of Senior Indebtedness of each of the Guarantors as provided in this
Article 12 and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Guarantor. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of a Guarantor and shall
not be liable to any such holders if it shall mistakenly pay over or distribute
to Securityholders or the relevant Guarantor or any other Person, money or
assets to which any holders of Senior Indebtedness of such Guarantor shall be
entitled by virtue of this Article 12 or otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Guarantor on Subordination Provisions. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of a Guarantor, whether such Senior Indebtedness of such
Guarantor was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness of such Guarantor and such holder of Senior Indebtedness of such
Guarantor shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness of such Guarantor.
SECTION 12.16. Defeasance. The terms of this Article 12 shall
not apply to payments from money or the proceeds of U.S. Government Obligations
held in trust by the Trustee for the payment of principal of and interest on the
Securities pursuant to the provisions described in Section 8.03.
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ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or any Guarantor:
Volume Services America, Inc.
201 East Broad Street
Spartanburg, South Carolina 29306
Attention of: Chief Financial Officer
if to the Trustee:
Norwest Bank Minnesota, National Association
Sixth Street and Marquette Avenue
Minneapolis MN 55479-0069
Attention of: Corporate Trust Department
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
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SECTION 13.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direc tion, waiver or consent, Securities owned by the Company,
any Guarantor or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any Guarantor
shall be disregarded and deemed not to be outstanding, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
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SECTION 13.09. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 13.10. No Recourse Against Others. A director,
officer, employee or stockholder of the Company or any Guarantor shall not have
any liability for any obligations of the Company or any Guarantor under the
Securities, the Guarantees or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION 13.11. Successors. All agreements of the Company and
each Guarantor in this Indenture and the Securities shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 13.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
VOLUME SERVICES AMERICA, INC.,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
VOLUME SERVICES AMERICA
HOLDINGS, INC., as Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
VOLUME SERVICES, INC., as Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
SERVICE AMERICA CORPORATION, as
Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
VOLUME SERVICES, INC. (Kansas), as
Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
79
EVENTS CENTER CATERING, INC., as
Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
SERVICE AMERICA CONCESSIONS
CORPORATION, as Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
SERVICE AMERICA CORPORATION OF
WISCONSIN, as Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
SERVO-KANSAS, INC. as Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
SERVOMATION DUCHESS, INC., as
Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
SVM OF TEXAS, INC., as Guarantor,
By /s/ John T. Dee
-----------------------------------
Name: John T. Dee
Title: CEO and Chairman of the Board of Directors
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NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
by /s/ Timothy P. Mowdy
--------------------------------
Name: Timothy P. Mowdy
Title: Designated Signer
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
ADDITIONAL SECURITIES, EXCHANGE SECURITIES
AND PRIVATE EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security,
Euroclear and Cedel, in each case to the extent applicable to such transaction
and as in effect from time to time.
"Cedel" means Cedel Bank, S.A., or any successor securities
clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means the Euroclear Clearance System or any
successor securities clearing agency.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Chase Securities Inc. and Goldman,
Sachs & Co.
"Private Exchange" means an offer by the Company, pursuant to
a Registration Agreement, to issue and deliver to certain purchasers, in
exchange for the Initial Securities held by such purchasers as part of their
initial distribution, a like aggregate principal amount of Private Exchange
Securities.
"Private Exchange Securities" means the Securities of the
Company issued in exchange for Initial Securities pursuant to this Indenture in
connection with a Private Exchange pursuant to a Registration Agreement.
"Purchase Agreement" means (i) the Purchase Agreement dated
February 25, 1999, among the Company, the Guarantors and the Initial Purchasers
and (ii) any other similar Purchase Agreement relating to Additional Securities.
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"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means an offer by the Company,
pursuant to a Registration Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for their Initial Securities,
a like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (i) the Exchange and
Registration Rights Agreement dated March 4, 1999, among the Company, the
Guarantors and the Initial Purchasers and (ii) any other similar Exchange and
Registration Rights Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Period", with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (i) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Company in connection with the offer and sale of Initial Securities
pursuant to a Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the Restricted
Securities Legend.
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1.2 Other Definitions
Term: Defined in Section:
----- -------------------
"Agent Members".........................................................2.1(b)
"IAI Global Security"...................................................2.1(a)
"Global Security".......................................................2.1(a)
"Regulation S Global Security"..........................................2.1(a)
"Rule 144A Global Security".............................................2.1(a)
2. The Securities
2.1 Form and Dating
The Initial Securities issued on the date hereof will be (i)
offered and sold by the Company pursuant to a Purchase Agreement and (ii)
resold, initially only to (A) QIBs in reliance on Rule 144A and (B) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation
S. Such Initial Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and, except as set forth below, IAIs in
accordance with Rule 501. Additional Securities offered after the date hereof
may be offered and sold by the Company from time to time pursuant to one or more
Purchase Agreements in accordance with applicable law.
(a) Global Securities. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
global Securities (collectively, the "Regulation S Global Security"), in each
case without interest coupons and bearing the Global Securities Legend and
Restricted Securities Legend, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Securities Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in
this Indenture. One or more global securities in definitive, fully registered
form without interest coupons and bearing the Global Securities Legend and the
Restricted Securities Legend (collectively, the "IAI Global Security") shall
also be issued on the Closing Date, deposited with the Securities Custodian, and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as provided in this
Indenture to accommodate transfers of beneficial interests in the Securities to
IAIs subsequent to the initial distribution. Beneficial ownership interests in
the Regulation S Global Security shall not be exchangeable for interests in the
Rule 144A Global Security, the IAI Global Security or any other Security without
a Restricted Securities Legend until the expiration of the Restricted Period.
The Rule 144A Global Security, the IAI Global Security and the Regulation S
Global Security are each referred to herein as a "Global Security" and are
collectively referred to herein as "Global Securities." The aggregate principal
amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depositary or its
nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depositary.
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The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b) and pursuant to an order of the Company, authenticate
and deliver initially one or more Global Securities that (a) shall be registered
in the name of the Depositary for such Global Security or Global Securities or
the nominee of such Depositary and (b) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions or held by the Trustee
as Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.3
or 2.4, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make available
for delivery upon a written order of the Company signed by two Officers (1)
Original Securities for original issue on the date hereof in an aggregate
principal amount of $100,000,000 (2) subject to the terms of this Indenture,
Additional Securities in an aggregate principal amount of up to $100,000,000 and
(3) the (A) Exchange Securities for issue only in a Registered Exchange Offer
and (B) Private Exchange Securities for issue only in a Private Exchange, in the
case of each of (A) and (B) pursuant to a Registration Agreement and for a like
principal amount of Initial Securities exchanged pursuant thereto. Such order
shall specify the amount of the Securities to be authenticated, the date on
which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities, Exchange Securities or Private Exchange
Securities. The aggregate principal amount of Securities outstanding at any time
may not exceed $200,000,000 except as provided in Section 2.08 of this
Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of
Definitive Securities. When Definitive Securities are presented to the Registrar
with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
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(ii) are accompanied by the following additional information
and documents, as applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect (in the form set forth on the reverse
side of the Initial Security); or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that effect (in
the form set forth on the reverse side of the Initial
Security); or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration
requirements of the Securities Act, (i) a certification to
that effect (in the form set forth on the reverse side of the
Initial Security) and (ii) if the Company so requests, an
opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (A) to a QIB in accordance with Rule 144A, (B) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit D or (C) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not been
previously exchanged for certificated securities pursuant to Section 2.4, the
Company shall issue and the Trustee
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shall authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Security in the appropriate principal
amount.
(c) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global
Security shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Security or
another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Security being transferred. Transfers by
an owner of a beneficial interest in the Rule 144A Global Security or the IAI
Global Security to a transferee who takes delivery of such interest through the
Regulation S Global Security, whether before or after the expiration of the
Restricted Period, shall be made only upon receipt by the Trustee of a
certification from the transferor to the effect that such transfer is being made
in accordance with Regulation S or (if available) Rule 144 under the Securities
Act and that, if such transfer is being made prior to the expiration of the
Restricted Period, the interest transferred shall be held immediately thereafter
through Euroclear or Cedel. In the case of a transfer of a beneficial interest
in either the Regulation S Global Security or the Rule 144A Global Security for
an interest in the IAI Global Security, the transferee must furnish a signed
letter substantially in the form of Exhibit D to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation
of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Company.
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(d) Restrictions on Transfer of Regulation S Global Security.
(i) Prior to the expiration of the Restricted Period, interests in the
Regulation S Global Security may only be held through Euroclear or Cedel. During
the Restricted Period, beneficial ownership interests in the Regulation S Global
Security may only be sold, pledged or transferred through Euroclear or Cedel in
accordance with the Applicable Procedures and only (A) to the Company, (B) so
long as such security is eligible for resale pursuant to Rule 144A, to a person
whom the selling Holder reasonably believes is a QIB that purchases for its own
account or for the account of a QIB to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, (C) in an offshore
transaction in accordance with Regulation S, (D) pursuant to an exemption from
registration under the Securities Act provided by Rule 144 (if applicable) under
the Securities Act, (E) to an IAI purchasing for its own account, or for the
account of such an IAI, in a minimum principal amount of Securities of $250,000
or (F) pursuant to an effective registration statement under the Securities Act,
in each case in accordance with any applicable securities laws of any state of
the United States. Prior to the expiration of the Restricted Period, transfers
by an owner of a beneficial interest in the Regulation S Global Security to a
transferee who takes delivery of such interest through the Rule 144A Global
Security or the IAI Global Security shall be made only in accordance with
Applicable Procedures and upon receipt by the Trustee of a written certification
from the transferor of the beneficial interest in the form provided on the
reverse of the Initial Security to the effect that such transfer is being made
to (i) a person whom the transferor reasonably believes is a QIB within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A or
(ii) an IAI purchasing for its own account, or for the account of such an IAI,
in a minimum principal amount of the Securities of $250,000. Such written
certification shall no longer be required after the expiration of the Restricted
Period. In the case of a transfer of a beneficial interest in the Regulation S
Global Security for an interest in the IAI Global Security, the transferee must
furnish a signed letter substantially in the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of
this Indenture.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) or (iv), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being
defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH
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SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
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(iii) After a transfer of any Original or Additional
Securities or Private Exchange Securities during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Original or Additional Securities or Private Exchange Securities, as
the case may be, all requirements pertaining to the Restricted
Securities Legend on such Original or Additional Securities or such
Private Exchange Securities shall cease to apply and the requirements
that any such Original or Additional Securities or such Private
Exchange Securities be issued in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Original or Additional Securities pursuant to which
Holders of such Original or Additional Securities are offered Exchange
Securities in exchange for their Original or Additional Securities, all
requirements pertaining to Original or Additional Securities that
Original or Additional Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Original or Additional Securities pursuant to which Holders of
such Original or Additional Securities are offered Private Exchange
Securities in exchange for their Original or Additional Securities, all
requirements pertaining to such Original or Additional Securities that
Original or Additional Securities be issued in global form shall
continue to apply, and Private Exchange Securities in global form with
the Restricted Securities Legend shall be available to Holders that
exchange such Original or Additional Securities in such Private
Exchange.
(vi) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to
Regulation S, all requirements that such Initial Security bear the
Restricted Securities Legend shall cease to apply and the requirements
requiring any such Initial Security be issued in global form shall
continue to apply.
(vii) Any Additional Securities sold in a registered offering
shall not be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
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(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 3.06, 4.06, 4.08 and
9.05 of the Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depositary or any other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and pro cedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Inden ture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depositary participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
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2.4 Definitive Securities
(a) A Global Security deposited with the Depositary or with
the Trustee as Securities Custodian pursuant to Section 2.1 shall be transferred
to the beneficial owners thereof in the form of Definitive Securities in an
aggregate principal amount equal to the principal amount of such Global
Security, in exchange for such Global Security, only if such transfer complies
with Section 2.3 and (i) the Depositary notifies the Company that it is
unwilling or unable to continue as a Depositary for such Global Security or if
at any time the Depositary ceases to be a "clearing agency" registered under the
Exchange Act, and a successor depositary is not appointed by the Company within
90 days of such notice, or (ii) an Event of Default has occurred and is
continuing or (iii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of certificated Securities under
this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE
2
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
No. ____ $__________
11 1/4% Senior Subordinated Note due 2009
CUSIP No. ______
VOLUME SERVICES AMERICA, INC., a Delaware corporation,
promises to pay to Cede & Co., or registered assigns, the principal sum
[of Dollars] [listed on the Schedule of Increases or Decreases in Global
Security attached hereto]1 on March 1, 2009.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
- --------
1 Use the Schedule of Increases and Decreases language for a Global Security.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
VOLUME SERVICES AMERICA, INC.
by
_____________________________
Name:
Title:
by
_____________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by _____________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
11 1/4% Senior Subordinated Note due 2009
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture (as defined).
1. Interest
(a) VOLUME SERVICES AMERICA, INC., a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. The Company shall pay interest semiannually on March 1 and September 1 of
each year. Interest on the Securities shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from March 4,
1999. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
(b) Liquidated Damages. The holder of this Security is
entitled to the benefits of an Exchange and Registration Rights Agreement, dated
as of March 4, 1999, among the Company, Volume Services America Holdings, Inc.,
Volume Services, Inc. (Delaware), Service America Corporation, Volume Services,
Inc. (Kansas), Events Center Catering, Inc., Service America Concessions
Corporation, Service America Corporation of Wisconsin, Servo-Kansas, Inc.,
Servomation Duchess, Inc., and SVM of Texas, Inc. (the "Guarantors") and the
Initial Purchasers named therein (the "Registration Agreement"). Capitalized
terms used in this paragraph (b) but not defined herein have the meanings
assigned to them in the Registration Agreement. If (i) the Shelf Registration
Statement or Exchange Offer Registration Statement, as applicable under the
Registration Agreement, is not filed with the Commission on or prior to 90 days
after the Issue Date (or, in the case of a Shelf Registration Statement required
to be filed in response to a change in law or applicable interpretations of the
Commission's staff, if later, within 60 days after publication of the change in
law or interpretations, but in no event before 90 days after the Issue Date),
(ii) the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, is not declared effective within 180 days after
the Issue Date (or, in the case of a Shelf Registration Statement required to be
filed in response to a change in law or applicable interpretations of the
Commission's staff, if later, within 60 days after publication of the change in
law or interpretations, but in no event before 180 days after the Issue Date),
(iii) the Registered Exchange Offer is not consummated on or prior to 210 days
after the Issue Date (other than in the event the Company files a Shelf
Registration Statement), or (iv) the Shelf Registration Statement is filed and
declared effective within 180 days after the Issue Date (or, in the case of a
Shelf Registration Statement required to be filed in response to a change in law
or applicable interpretations of the Commission's staff, if later, within 60
days after publication of the change in law or interpretations, but in no event
before 180 days after the Issue Date) but shall thereafter cease to be effective
(other than at any time that the Company and the Guarantors are not obligated to
maintain the effectiveness thereof) without being succeeded within 90 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), the Company
and the Guarantors will be jointly and severally obligated to pay liquidated
damages to each holder of Transfer Restricted Securities, during the period of
one or more such Registration Defaults, in an amount equal to $0.192 per week
per $1,000 principal amount of the Securities constituting Transfer Restricted
Securities held by such holder until the applicable
2
Registration Statement is filed or declared effective and the Registered
Exchange Offer is consummated or the Shelf Registration Statement again becomes
effective, as the case may be. All accrued liquidated damages shall be paid to
holders in the same manner as interest payments on the Securities on semi-annual
payment dates which correspond to interest payment dates for the Securities.
Following the cure of all Registration Defaults, the accrual of liquidated
damages shall cease. The Trustee shall have no responsibility with respect to
the determination of the amount of any such liquidated damages. For purposes of
the foregoing, "Transfer Restricted Securities" means (i) each Initial Security
until the date on which such Initial Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) each
Initial Security or Private Exchange Security until the date on which such
Initial Security or Private Exchange Security has been effectively registered
under the Securities Act and disposed of in accordance with a Shelf Registration
Statement or (iii) each Initial Security or Private Exchange Security until the
date on which such Initial Security or Private Exchange Security is distributed
to the public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act.
2. Method of Payment
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 15 or August 15 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal,
premium, liquidated damages, if any, and interest in money of the United States
of America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium, liquidated damages, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all
payments in respect of a certificated Security (including principal, premium,
liquidated damages, if any, and interest), and the Securities may be exchanged
or transferred, at the office or agency of the Company in the Borough of
Manhattan, The City of New York (which initially shall be the office of the
Trustee maintained for such purpose at The Depository Trust Company, 55 Water
Street, New York, NY 10041), except that, at the option of the Company, payment
of interest may be made by check mailed to the Holders at their registered
addresses; provided, however, that payments on the Securities may also be made,
in the case of a Holder of at least $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer
by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
Initially, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a a
national banking association (the "Trustee"), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
3
4. Indenture
The Company issued the Securities under an Indenture dated as
of March 4, 1999 (the "Indenture"), among the Company, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Section Section 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all terms and provisions of the Indenture, and Securityholders are referred
to the Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior subordinated unsecured obligations
of the Company limited to $200,000,000 aggregate principal amount at any one
time outstanding (subject to Sections 2.01 and 2.08 of the Indenture), of which
$100,000,000 in aggregate principal amount shall be initially issued on the
Closing Date. Subject to the conditions set forth in the Indenture, the Company
may issue up to an additional $100,000,000 aggregate principal amount of
Additional Securities. This Security is one of the [Original][Additional]
Securities referred to in the Indenture issued in an aggregate principal amount
of $[ ]. The Securities include the Initial Securities and any Exchange
Securities and Private Exchange Securities issued in exchange for Initial
Securities. The Initial Securities, the Exchange Securities and the Private
Exchange Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, incur
Indebtedness and issue Disqualified Stock and Preferred Stock; pay dividends on,
and redeem, capital stock and redeem Indebtedness that is subordinate in right
of payment to the Securities; make certain other Restricted Payments, including
Investments; enter into consensual restrictions on the payment of certain
dividends and distributions by Restricted Subsidiaries; enter into or permit
certain transactions with Affiliates; create or incur Liens; and make Asset
Sales. The Indenture also imposes limitations on the ability of the Company and
the Guarantors to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of the Company or the
Guarantors.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Guarantors have jointly and severally
unconditionally guaranteed the Guaranteed Obligations on a senior subordinated
basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the next two paragraphs, the Securities
shall not be redeemable at the option of the Company prior to March 1, 2004.
Thereafter, the Securities shall be redeemable at the option of the Company, in
whole or in part, on not less than 30 nor more than 60 days' prior notice mailed
by first class mail to each Holder's registered address, at the following
redemption prices (expressed as percentages of principal amount), plus accrued
and unpaid interest and liquidated damages (if any) to the redemption date
(subject to
4
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date), if redeemed during the 12-month
period commencing on March 1 of the years set forth below:
Redemption
Year Price
-----------------------------------------------------------
2004 105.625%
2005 103.750%
2006 101.875%
2007 and thereafter 100.000%
In addition, at any time and from time to time, prior to March
1, 2002, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of the Securities (calculated after giving effect to
any issuance of Additional Securities) with the net cash proceeds of one or more
Equity Offerings (i) by the Company or (ii) by Volume Holdings to the extent the
net cash proceeds thereof are contributed to the Company or used to purchase
from the Company Capital Stock (other than Disqualified Stock) of the Company,
at a redemption price (expressed as a percentage of principal amount thereof) of
111.25% plus accrued and unpaid interest and liquidated damages, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the original aggregate principal amount
of the Securities (calculated after giving effect to any issuance of Additional
Securities) must remain outstanding after each such redemption and provided
further that such redemption shall be made within 90 days after the date on
which any such Equity Offering is consummated upon not less than 30 nor more
than 60 days' notice mailed to each holder of Securities being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
In addition, at any time on or prior to March 1, 2004, the
Notes may be redeemed as a whole but not in part at the option of the Company
upon the occurrence of a Change of Control, upon not less than 30 or more than
60 days' prior notice (but in no event may any such redemption occur more than
90 days after the occurrence of such Change of Control) mailed by first-class
mail to each Holder's registered address, at a redemption price equal to 100% of
the principal amount thereof plus the Applicable Premium as of, and accrued but
unpaid interest and liquidated damages, if any, to, the redemption date, subject
to the right of Holders on the relevant record date to receive interest due on
the relevant interest payment date.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest and liquidated damages (if any) on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before
5
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest and liquidated damages, if any, to
the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
9. Subordination
The Securities are subordinated to Senior Indebtedness of the
Company, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Company must be paid before the Securities may be
paid. The Company and each Guarantor agrees, and each Securityholder by
accepting a Security agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
6
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities and (ii)
any Default or compliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article 5 of the
Indenture; (iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; (iv) to add Guarantees with respect to the
Securities; (v) to secure the Securities; (vi) to add additional covenants or to
surrender rights and powers conferred on the Company; (vii) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; (viii) to make any change that does not adversely
affect the rights of any Securityholder; (ix) to make any change in the
subordination provisions of the Indenture that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Issuer (or any
representative thereof) under such subordination provisions; or (x) to provide
for the issuance of the Exchange Securities, Private Exchange Securities or
Additional Securities.
15. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding
Securities may rescind any such acceleration with respect to the Securities and
its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Securities unless (i) such Holder
has previously given the Trustee notice that an Event of Default is continuing,
(ii) Holders of at least 25% in principal amount of the outstanding Securities
have requested the Trustee in writing to pursue the remedy, (iii) such Holders
have offered the Trustee reasonable security or indemnity against any loss,
liability or expense, (iv) the Trustee has not complied with such request within
60 days after the receipt of the request and the offer of security or indemnity
and (v) the Holders of a majority in principal amount of the outstanding
Securities have not given the Trustee a direction inconsistent with such request
within such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Securities are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or the Indenture or that the Trustee determines is unduly prejudicial
to the rights of any other Holder or that would involve the Trustee in personal
liability. Prior to taking
7
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder of the Company or
any Guarantor shall not have any liability for any obligations of the Company or
any Guarantor under the Securities, the Guarantees or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
21. 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 Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
_____________________________________________________________________
Date: _____________________ Your Signature: _____________________
_____________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933;
or
(5) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
(6) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
Person other than the registered holder thereof; provided, however,
that if box (4), (5) or (6) is checked, the
2
Trustee may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other information
as the Company has reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933.
________________________________
Your Signature
Signature Guarantee:
Date: ___________________ ________________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
____________________________________________________________
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ _____________________________________
NOTICE: To be executed by
an executive officer
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [ ] Change of Control [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount:
$
Date: ______________________ Your Signature: ________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:____________________________________________________________
Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature
guarantor acceptable to the Trustee
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
No. ___ $__________
11 1/4% Senior Subordinated Note due 2009
CUSIP No. ______
VOLUME SERVICES AMERICA, INC., a Delaware corporation,
promises to pay to Cede & Co., or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global Security
attached hereto]1 on March 1, 2009.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
- --------
1 Use the Schedule of Increases and Decreases language for a Global Security.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
VOLUME SERVICES AMERICA, INC.,
by
_____________________________________
Name:
Title:
by
_____________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in this Indenture.
by
______________________________
Authorized Signatory
- --------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
11 1/4% Senior Subordinated Note due 2009
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture (as defined).
1. Interest
VOLUME SERVICES AMERICA, INC., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
shall pay interest semiannually on March 1 and September 1 of each year.
Interest on the Securities shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 4, 1999.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 15 or August 15 next preceding the
interest payment date even if Securities are canceled after the record date and
on or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal,
premium, liquidated damages, if any, and interest in money of the United States
of America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium, liquidated damages, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company shall make all
payments in respect of a certificated Security (including principal, premium,
liquidated damages, if any, and interest), and the Securities may be exchanged
or transferred, at the office or agency of the Company in the Borough of
Manhattan, The City of New York (which initially shall be the office of the
Trustee maintained for such purpose at the Depository Trust Company, 55 Water
Street, New York, NY 10041), except that, at the option of the Company, payment
of interest may be made by check mailed to the Holders at their registered
addresses; provided, however, that payments on the Securities may also be made,
in the case of a Holder of at least $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer
by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
Initially, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association (the "Trustee"), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
2
4. Indenture
The Company issued the Securities under an Indenture dated as
of March 4, 1999 (the "Indenture"), among the Company, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Section Section 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all terms and provisions of the Indenture, and Securityholders are referred
to the Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior subordinated unsecured obligations
of the Company limited to $200,000,000 aggregate principal amount at any one
time outstanding, of which $100,000,000 in aggregate principal amount was
initially issued on the Closing Date. Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $100,000,000 aggregate
principal amount of Additional Securities. This Security is one of the [Exchange
Securities] [Private Exchange Securities] referred to in the Indenture. The
Securities include the Original Securities, the Additional Securities and any
Exchange Securities and Private Exchange Securities issued in exchange for the
Initial Securities pursuant to the Indenture. The Original Securities, the
Additional Securities, the Exchange Securities and the Private Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, incur Indebtedness and issue
Disqualified Stock and Preferred Stock; pay dividends on, and redeem, capital
stock and redeem Indebtedness that is subordinate in right of payment to the
Securities; make certain other Restricted Payments, including Investments; enter
into consensual restrictions on the payment of certain dividends and
distributions by Restricted Subsidiaries; enter into or permit certain
transactions with Affiliates; create or incur Liens; and make Asset Sales. The
Indenture also imposes limitations on the ability of the Company and the
Guarantors to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of the Company or the
Guarantors.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the next two paragraphs, the Securities
shall not be redeemable at the option of the Company prior to March 1, 2004.
Thereafter, the Securities shall be redeemable at the option of the Company, in
whole or in part, on not less than 30 nor more than 60 days' prior notice mailed
by first class mail to each Holder's registered address, at the following
redemption prices (expressed as percentages of principal amount), plus accrued
and unpaid interest and liquidated damages (if any) to the redemption date
(subject to
3
the right of Holders of record on the relevant record date to receive interest
dueon the relevant interest payment date), if redeemed during the 12-month
period commencing on March 1 of the years set forth below:
Redemption
Year Price
---------------------------------------------------------
2004 105.625%
2005 103.750%
2006 101.875%
2007 and thereafter 100.000%
In addition, at any time and from time to time, prior to March
1, 2002, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of the Securities (calculated after giving effect to
any issuance of Additional Securities)] with the net cash proceeds of one or
more Equity Offerings (i) by the Company or (ii) by Volume Holdings to the
extent the net cash proceeds thereof are contributed to the Company or used to
purchase from the Company Capital Stock (other than Disqualified Stock) of the
Company, at a redemption price (expressed as a percentage of principal amount
thereof) of 111.25% plus accrued and unpaid interest and liquidated damages, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, at least 65% of the original aggregate principal
amount of the Securities (calculated after giving effect to any issuance of
Additional Securities) must remain outstanding after each such redemption and
provided further that such redemption shall be made within 90 days after the
date on which any such Equity Offering is consummated upon not less than 30 nor
more than 60 days' notice mailed to each holder of Securities being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
In addition, at any time on or prior to March 1, 2004, the
Notes may be redeemed as a whole but not in part at the option of the Company
upon the occurrence of a Change of Control, upon not less than 30 or more than
60 days' prior notice (but in no event may any such redemption occur more than
90 days after the occurrence of such Change of Control) mailed by first-class
mail to each Holder's registered address, at a redemption price equal to 100% of
the principal amount thereof plus the Applicable Premium as of, and accrued but
unpaid interest and liquidated damages, if any, to, the redemption date, subject
to the right of Holders on the relevant record date to receive interest due on
the relevant interest payment date.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest and liquidated damages (if any) on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before
4
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest and liquidated damages, if any, to
the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
9. Subordination
The Securities are subordinated to Senior Indebtedness of the
Company, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Company must be paid before the Securities may be
paid. The Company and each Guarantor agrees, and each Securityholder by
accepting a Security agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the
5
Trustee money or U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities and (ii)
any Default or compliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article 5 of the
Indenture; (iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; (iv) to add Guarantees with respect to the
Securities; (v) to secure the Securities; (vi) to add additional covenants or to
surrender rights and powers conferred on the Company; (vii) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; (viii) to make any change that does not adversely
affect the rights of any Securityholder; (ix) to make any change in the
subordination provisions of the Indenture that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Issuer (or any
representative thereof) under such subordination provisions; or (x) to provide
for the issuance of the Exchange Securities, Private Exchange Securities or
Additional Securities.
15. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding
Securities may rescind any such acceleration with respect to the Securities and
its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Securities unless (i) such Holder
has previously given the Trustee notice that an Event of Default is continuing,
(ii) Holders of at least 25% in principal amount of the outstanding Securities
have requested the Trustee in writing to pursue the remedy, (iii) such Holders
have offered the Trustee reasonable security or indemnity against any loss,
liability or expense, (iv) the Trustee has not complied with such request within
60 days after the receipt of the request and the offer of security or indemnity
and (v) the Holders of a majority in principal amount of the outstanding
Securities have not given the Trustee a direction inconsistent with such request
within such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Securities are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or
6
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder of the Company or
any Guarantor shall not have any liability for any obligations of the Company or
any Guarantor under the Securities, the Guarantees or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
21. 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 Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
7
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
________________________________________________________________
Date: ________________ Your Signature: _____________________
_________________________________________________________________
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [ ] Change of Control [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount:
$
Date: __________________ Your Signature: _____________________________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:___________________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee.
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR]
(the "New Guarantor"), a subsidiary of VOLUME
SERVICES AMERICA, INC. (or its successor), a
Delaware corporation (the "Company"), [EXISTING
GUARANTORS] and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association, as
trustee under the Indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS the Company and [OLD GUARANTORS] (the "Existing
Guarantors") have heretofore executed and delivered to the Trustee an Indenture
(the "Indenture") dated as of March 4, 1999, providing for the issuance of an
aggregate principal amount of up to $200,000,000 of 11 1/4% Senior Subordinated
Notes due 2009 (the "Securities");
WHEREAS Section 4.12 of the Indenture provides that under
certain circumstances the Company is required to cause the New Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall unconditionally guarantee all the Company's obligations
under the Securities pursuant to a Guarantee on the terms and conditions set
forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Company and the Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with all the Existing Guarantors, to unconditionally
guarantee the Company's obligations under the Securities on the terms and
subject to the conditions set forth in Article 10 of the Indenture and to be
bound by all other applicable provisions of the Indenture and the Securities.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
2
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
________________________________________
Name:
Title:
VOLUME SERVICES AMERICA, INC.
by
________________________________________
Name:
Title:
[EXISTING GUARANTORS],
by
________________________________________
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee,
by
________________________________________
Name:
Title:
EXHIBIT D
Form of
Transferee Letter of Representation
Volume Services America, Inc.
201 East Broad Street
Spartanburg, South Carolina 29306
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the 11 1/4% Senior Subordinated Notes due 2009 (the "Securities") of
Volume Services America, Inc. (the "Company").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement that has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act ("Rule 144A"), to a person we reasonably believe
is a qualified institutional buyer under Rule 144A (a "QIB") that is purchasing
for its own account or for the account of a QIB and to whom notice is given that
the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of
2
$250,000, or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Securities is proposed
to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Company and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Securities for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Company and the Trustee reserve the right prior
to the offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Securities pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications or other information
satisfactory to the Company and the Trustee.
TRANSFEREE:_________________,
by:___________________________