Exhibit 99.7
EXPLANATORY NOTE (1)
--------------------
The forms of indentures for the 7-year and 10-year fixed-rate Plan Notes being
filed as Exhibits 1.96-A and 1.96-B to the Plan of Reorganization as part of the
Plan Supplement (the "Plan Notes Indentures") are the product of negotiations
and discussions among Armstrong World Industries, Inc. ("AWI"), its financial
advisor and counsel, and members of the Asbestos PI Claimants' Committee, the
Future Claimants' Representative and the Unsecured Creditors' Committee
(collectively, the "Committees") and their respective advisors and counsel. It
is possible that further discussions among these parties concerning the terms of
these indentures may take place following this filing and that these discussions
may result in changes to some of the terms currently contained therein.
Section 7.3 of the Plan of Reorganization provides that AWI will use reasonable
efforts to complete a 144A Offering on or as soon as practicable after the
Effective Date. AWI has represented to the Committees that if AWI successfully
completes an offering of notes in the 144A Offering (such notes being referred
to as "144A Notes") but the net proceeds from the 144A Offering are less than
the Plan Note Amount, AWI would issue additional 144A Notes to the applicable
classes of creditors under the Plan of Reorganization in lieu of the Plan Notes
it would otherwise issue under the Plan Note Indentures (subject to compliance
with applicable securities laws).
In addition, although the Plan of Reorganization provides for the possibility
that AWI would issue Plan Notes bearing a floating interest rate ("Floating Rate
Plan Notes"), AWI has not filed a form of indenture for such Floating Rate Plan
Notes. Rather, AWI has represented to the Committees that it is AWI's intention
to seek to obtain a floating rate term loan credit facility from a syndicate of
banks and other financial institutions and lenders (a "Term Loan B"). AWI has
represented to the Committees that if AWI is successful in obtaining a Term Loan
B, AWI will not issue any Floating Rate Plan Notes under the Plan of
Reorganization. AWI has further represented to the Committees that if AWI is not
successful in obtaining a Term Loan B, AWI will not issue any Floating Rate Plan
Notes under the Plan of Reorganization unless such Floating Rate Plan Notes
satisfy the requirements of the Plan of Reorganization and are on terms and
conditions that are mutually satisfactory to AWI and the Committees.
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(1) Capitalized terms used in this explanatory note and not otherwise defined
have the meanings set forth in the Plan of Reorganization.
ARMSTRONG WORLD INDUSTRIES, INC.,
as Company
$[ ]
[ ]% SENIOR NOTES DUE 201[ ](1)
------------------------------
INDENTURE
Dated as of [ ], 2003
------------------------------
[ ],
as Trustee
- ----------------------
(1) The seventh anniversary of the Issue Date.
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE...........................................................1
Section 1.01. Definitions.....................................................................1
Section 1.02. Other Definitions..............................................................23
Section 1.03. Incorporation by Reference of Trust Indenture Act..............................23
Section 1.04. Rules of Construction..........................................................24
ARTICLE 2. THE NOTES...........................................................................................24
Section 2.01. Form and Dating................................................................25
Section 2.02. Execution and Authentication...................................................26
Section 2.03. Registrar, Paying Agent and Depositary.........................................26
Section 2.04. Paying Agent to Hold Money in Trust............................................27
Section 2.05. Holder Lists...................................................................27
Section 2.06. Transfer and Exchange..........................................................27
Section 2.07. Temporary Notes................................................................37
Section 2.08. Mutilated, Destroyed, Lost or Stolen Notes.....................................38
Section 2.09. Payment of Interest; Interest Rights Preserved.................................38
Section 2.10. Persons Deemed Owners..........................................................39
Section 2.11. Cancellation...................................................................39
Section 2.12. CUSIP or ISIN Numbers..........................................................39
Section 2.13. Outstanding Notes..............................................................39
Section 2.14. Treasury Notes.................................................................40
ARTICLE 3. REDEMPTION AND PREPAYMENT...........................................................................40
Section 3.01. Notices to Trustee.............................................................40
Section 3.02. Selection of Notes to Be Redeemed..............................................40
Section 3.03. Notice of Redemption...........................................................40
Section 3.04. Effect of Notice of Redemption.................................................41
Section 3.05. Deposit of Redemption Price....................................................41
Section 3.06. Notes Redeemed in Part.........................................................41
Section 3.07. Optional Redemption............................................................41
Section 3.08. Mandatory Redemption...........................................................42
Section 3.09. Offer To Purchase..............................................................42
ARTICLE 4. COVENANTS...........................................................................................44
Section 4.01. Payment of Notes; Money for Note Payments to be Held in Trust..................44
Section 4.02. Maintenance of Office or Agency................................................46
Section 4.03. Reports........................................................................46
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TABLE OF CONTENTS
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PAGE
Section 4.04. Compliance Certificate.........................................................46
Section 4.05. Taxes..........................................................................47
Section 4.06. Stay, Extension and Usury Laws.................................................47
Section 4.07. Corporate Existence............................................................47
Section 4.08. Payments for Consent...........................................................47
Section 4.09. Incurrence of Additional Debt..................................................47
Section 4.10. Restricted Payments............................................................48
Section 4.11. Liens..........................................................................51
Section 4.12. Asset Sales....................................................................51
Section 4.13. Restrictions on Distributions from Restricted Subsidiaries.....................52
Section 4.14. Affiliate Transactions.........................................................53
Section 4.15. Sale and Leaseback Transactions................................................54
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries........................54
Section 4.18. Future Subsidiary Guarantors...................................................55
Section 4.19. Covenant Termination...........................................................55
ARTICLE 5. SUCCESSORS..........................................................................................56
Section 5.01. Merger, Consolidation and Sale of Assets.......................................56
Section 5.02. Successor Corporation Substituted..............................................57
ARTICLE 6. DEFAULTS AND REMEDIES...............................................................................58
Section 6.01. Events of Default..............................................................58
Section 6.02. Acceleration...................................................................59
Section 6.03. Other Remedies.................................................................60
Section 6.04. Waiver of Past Defaults........................................................60
Section 6.05. Control by Majority............................................................60
Section 6.06. Limitation on Suits............................................................60
Section 6.07. Rights of Holders to Receive Payment...........................................61
Section 6.08. Collection Suit by Trustee.....................................................61
Section 6.09. Trustee May File Proofs of Claim...............................................61
Section 6.10. Priorities.....................................................................61
Section 6.11. Undertaking for Costs..........................................................62
ARTICLE 7. TRUSTEE.............................................................................................62
Section 7.01. Duties of Trustee..............................................................62
Section 7.02. Rights of Trustee..............................................................63
Section 7.03. Individual Rights of Trustee...................................................64
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.04. Trustee's Disclaimer...........................................................64
Section 7.05. Notice of Defaults.............................................................64
Section 7.06. Reports by Trustee to Holders..................................................64
Section 7.07. Compensation and Indemnity.....................................................64
Section 7.08. Replacement of Trustee.........................................................65
Section 7.09. Successor Trustee by Merger, etc...............................................66
Section 7.10. Eligibility; Disqualification..................................................66
Section 7.11. Preferential Collection of Claims Against Company..............................66
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE............................................................66
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.......................66
Section 8.02. Legal Defeasance and Discharge.................................................67
Section 8.03. Covenant Defeasance............................................................67
Section 8.04. Conditions to Legal or Covenant Defeasance.....................................67
Section 8.05. Deposited Cash and U.S. Government Securities to Be Held in Trust;
Other Miscellaneous Provisions................................................68
Section 8.06. Repayment to Company...........................................................69
Section 8.07. Reinstatement..................................................................69
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER....................................................................69
Section 9.01. Without Consent of Holders of Notes............................................69
Section 9.02. With Consent of Holders of Notes...............................................70
Section 9.03. Compliance with Trust Indenture Act............................................71
Section 9.04. Revocation and Effect of Consents..............................................71
Section 9.05. Notation on or Exchange of Notes...............................................71
Section 9.06. Trustee to Sign Amendments, etc................................................72
ARTICLE 10. GUARANTEES..........................................................................................72
Section 10.01. Subsidiary Guarantees..........................................................72
Section 10.02. Limitation on Subsidiary Guarantor Liability...................................73
Section 10.03. Execution and Delivery of Subsidiary Guarantee.................................73
Section 10.04. Subsidiary Guarantors May Consolidate, etc. on Certain Terms...................74
Section 10.05. Releases Following Sale of Assets, Etc.........................................74
ARTICLE 11. SATISFACTION AND DISCHARGE..........................................................................75
Section 11.01. Satisfaction and Discharge.....................................................75
Section 11.02. Deposited Cash and U.S. Government Securities to Be Held in Trust;
Other Miscellaneous Provisions................................................75
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 11.03. Repayment to Company...........................................................76
ARTICLE 12. MISCELLANEOUS.......................................................................................76
Section 12.01. Trust Indenture Act Controls...................................................76
Section 12.02. Notices........................................................................76
Section 12.03. Communication by Holders of Notes with Other Holders of Notes..................77
Section 12.04. Certificate and Opinion as to Conditions Precedent.............................77
Section 12.05. Statements Required in Certificate or Opinion..................................77
Section 12.06. Rules by Trustee and Agents....................................................77
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.......78
Section 12.08. Governing Law..................................................................78
Section 12.09. No Adverse Interpretation of Other Agreements..................................78
Section 12.10. Successors.....................................................................78
Section 12.11. Severability...................................................................78
Section 12.12. Counterpart Originals..........................................................78
Section 12.13. Table of Contents, Headings, etc...............................................78
Section 12.14. Qualification of this Indenture................................................78
iv
CROSS-REFERENCE TABLE
TIA SECTION REFERENCE INDENTURE
SECTION
310(a)(1)................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.08, 7.10
(c)......................................................... N.A.
311(a)...................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312(a)...................................................... 2.05
(b)......................................................... 12.03
(c)......................................................... 12.03
313(a)...................................................... 7.06
(b)(1)...................................................... N.A.
(b)(2)...................................................... 7.06
(c)......................................................... 7.06, 12.02
(d)......................................................... 7.06
314(a)...................................................... 4.03, 4.04, 12.02
(b)......................................................... N.A.
(c)(1)...................................................... 12.04
(c)(2)...................................................... 12.04
(c)(3)...................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... 12.05
315(a)...................................................... 7.01
(b)......................................................... 7.05, 12.02
(c)......................................................... 7.01
(d)......................................................... 7.01
(e)......................................................... 6.11
316(a) (last sentence)...................................... 6.04
(a)(1)(A)................................................... 6.05
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... 6.07
317(a)(1)................................................... 6.08
(a)(2)...................................................... 6.09
(b)......................................................... 2.04
318(a)...................................................... 12.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
This INDENTURE dated as of [ ], 2003, is by and among Armstrong World
Industries, Inc., a Pennsylvania corporation (the "Company"), each Subsidiary
Guarantor listed on the signature pages hereto, and [ ], as trustee (the
"Trustee").
The Company, each Subsidiary Guarantor and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the [ ]%(2) Senior Notes due 201[ ] (3) (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
"144A Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
any Notes that may be sold in reliance on Rule 144A.
"Acquired Debt" of any specified Person means Debt of any other
Person and its Restricted Subsidiaries existing at the time such other Person
merged with or into or became a Restricted Subsidiary of such specified Person
or assumed by the specified Person in connection with the acquisition of assets
from such other Person, in each case pursuant to a transaction permitted under
this Indenture.
"Additional Assets" means:
(a) Any Property (other than cash, Cash Equivalents, securities and
Capital Stock) to be Owned by the Company or any Restricted Subsidiary and used
or useful in a Related Business; or
(b) Capital Stock of a Person that becomes a Restricted Subsidiary as
a result of the acquisition of such Capital Stock by the Company or another
Restricted Subsidiary from any Person other Than the Company or a Subsidiary of
the Company; or
(c) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Subsidiary;
provided, however, that, in the case of clauses (b) and (c), such Restricted
Subsidiary is primarily engaged in a Related Business.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control. The terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
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(2) See footnote 4.
(3) The seventh anniversary of the Issue Date.
1
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"Asset Sale" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition") of:
(a) any shares of capital stock of a restricted subsidiary (other
than directors' qualifying shares), or
(b) any other assets of the company or any restricted subsidiary
(other than cash equivalents) outside of the ordinary course of business of the
company or such restricted subsidiary,
other than, in the case of clause (a) or (b) above,
(1) any disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to a Restricted Subsidiary; provided
that the aggregate amount of any such dispositions by the Company or any
Domestic Subsidiary to Foreign Restricted Subsidiaries shall not exceed $[
] per annum;
(2) any disposition that constitutes a Permitted Investment or
Restricted Payment permitted by Section 4.10 hereof,
(3) any disposition effected in compliance with the first paragraph of
Section 5.01 hereof,
(4) the granting of any Permitted Lien (or the foreclosure thereon),
(5) a disposition of obsolete or worn out equipment or equipment that
is no longer useful in the conduct of the business of the Company and its
Restricted Subsidiaries and that is disposed of in each case in the
ordinary course of business,
(6) sales of assets in connection with Sale and Leaseback Transactions
otherwise permitted under this Indenture, and
(7) any sale, transfer or other disposition that does not (together
with all related sales, transfers or dispositions) involve consideration in
excess of $2.5 million.
Notwithstanding the foregoing, that the sale, lease, transfer,
conveyance, issuance or other disposition of all or substantially all of the
assets of the Company and the Restricted Subsidiaries, taken as a whole, will be
governed by the provisions of Section 4.17 and/or Section 5.01 hereof and not by
Section 4.12 hereof.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at any date of determination,
(a) if such sale and leaseback transaction results in a capital lease
obligation, the amount of debt represented thereby according to the definition
of "capital lease obligation," and
(b) in all other instances, the greater of:
(i) the fair market value of the property subject to such sale and
leaseback transaction; and
(ii) the present value (discounted at the interest rate borne by the notes,
compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been extended).\
2
"Average Life" means, as of any date of determination, with respect
to any Debt or Preferred Stock, the quotient obtained by dividing:
(a) the sum of the product of the numbers of years (rounded to the
nearest one-twelfth of one year) from the date of determination to the dates of
each successive scheduled principal payment of such debt or redemption or
similar payment with respect to such preferred stock multiplied by the amount of
such payment by
(b) the sum of all such payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Board of Directors" means (1) in respect of a corporation, the board
of directors of the corporation, or any duly authorized committee thereof and
(2) in respect of any other Person, the board or committee of that Person
serving a similar function.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the applicable Person to have been duly
adopted by the Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" means any obligation under a lease that
is required to be capitalized for financial reporting purposes in accordance
with GAAP; and the amount of Debt represented by such obligation shall be the
capitalized amount of such obligations determined in accordance with GAAP; and
the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty. For purposes of
Section 4.11 hereof, a Capital Lease Obligation shall be deemed secured by a
Lien on the Property being leased.
"Capital Stock" means, with respect to any Person, any shares or
other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash proceeds
received by the Company from the issuance or sale (other than to a Subsidiary of
the Company or an employee stock ownership plan or trust established by the
Company or any such Subsidiary) by the Company of its Capital Stock (other than
Disqualified Stock) after the Issue Date, net of attorneys' fees, accountants'
fees, underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees actually incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof.
"Cash Equivalents" means any of the following:
(a) any Investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United States of
America or any agency thereof;
(b) Investments in eurodollar time deposits, time deposit accounts,
demand deposit accounts, certificates of deposit and money market deposits
maturing within 365 days of the date of acquisition thereof issued by a bank or
trust company which is organized under the laws of the United States of America,
any state thereof or any foreign country recognized by the United States of
America having capital, surplus and undivided profits aggregating in excess of
$500.0 million and whose long-term debt, or whose parent holding company's
long-term debt, is rated "A-3" or "A-" or higher according to Moody's or S&P (or
such similar equivalent rating or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act));
3
(c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with (i) a bank meeting the qualifications described in clause (b) above or (ii)
any primary government securities dealer reporting to the Market Reports
Division of the Federal Reserve Bank of New York;
(d) Investments in commercial paper, maturing not more than 270 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Company) organized and in existence under the laws of the United States
of America or any foreign country recognized by the United States of America
with a rating at the time as of which any investment therein is made of "P-1"
(or higher) according to Moody's or "A-1" (or higher) according to S&P ;
(e) Investments in securities maturing not more than 365 days after
the date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or "A" by Moody's;
(f) Investments in mutual funds whose investment guidelines restrict
such funds' investments to those satisfying the provisions of clauses (a)
through (e) above; and
(g) in the case of Foreign Restricted Subsidiaries, substantially
similar investments denominated in foreign currencies (including securities
issued or fully guaranteed by foreign countries or political subdivisions or
taxing authorities thereof).
"Change of Control" means the occurrence of any of the following
events:
(a) any "person" or "group" (as such terms are used in Sections 13(D)
and 14(D) of the Exchange Act or any successor provisions to either of the
foregoing) of persons, including any group acting for the purpose of acquiring,
holding, voting or disposing of securities within the meaning of Rule
13D-5(b)(1) under the Exchange Act, other than the Asbestos Pi Trust, becomes
the "beneficial owner" (as defined in Rule 13D-3 under the Exchange Act, except
that a person will be deemed to have "beneficial ownership" of all shares that
any such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 35.0% of the total voting power of the Voting Stock of the Company;
provided, however, that for purposes of this clause (A), such person or group
shall be deemed to beneficially own any Voting Stock of a corporation held by
any other corporation (the "parent corporation") so long as such person or group
beneficially owns, directly or indirectly, in the aggregate at least a majority
of the total voting power of the Voting Stock of such parent corporation; and
provided, further, however that notwithstanding the foregoing, a Change of
Control will not be deemed to have occurred under this clause (a) if and so long
as the Asbestos Pi Trust is the "beneficial owner" (as defined above), directly
or indirectly, in the aggregate of a greater percentage of the total voting
power of the Voting Stock of the Company than such other person or group); or
(b) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the Property of
the Company and the Restricted Subsidiaries, considered as a whole (other than a
disposition of such Property as an entirety or virtually as an entirety to a
Wholly Owned Restricted Subsidiary or the Asbestos PI Trust) shall have
occurred, or the Company merges, consolidates or amalgamates with or into any
Other Person (other Than the Asbestos PI Trust) or any other person (other than
the Asbestos PI Trust) merges, consolidates or amalgamates with or into the
Company, in any such event pursuant to a transaction in which the outstanding
Voting Stock of the Company is reclassified into or exchanged for cash,
securities or other Property, other than any such transaction where:
(1) the outstanding Voting Stock of the Company is
reclassified into or exchanged for other Voting Stock of the Company
or for Voting Stock of the Surviving Person, and
(2) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or indirectly,
not less than a majority of the Voting Stock of the Company or the
Surviving Person immediately after such transaction and in
substantially the same proportion as before the transaction; or
4
(c) During any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together with
any new directors whose election or appointment by such board or whose
nomination for election by the shareholders of the Company was approved by a
vote of not less than a majority of the directors 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 then in office; or
(d) The shareholders of the company shall have approved any plan of
liquidation or dissolution of the company.
"Clearstream" means Clearstream Banking S.A. and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Commodity Price Protection Agreement" means, in respect of a Person,
any forward contract, commodity swap agreement, commodity option agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries that may properly be classified as current
liabilities (including taxes accrued as estimated), after eliminating:
(a) All intercompany items between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries, and
(b) All current maturities of long-term Debt.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of:
(a) the aggregate amount of EBITDA for the most recent four
consecutive fiscal quarters for which financial statements are available on such
determination date to
(b) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that:
(1) if
(A) since the beginning of such period the Company or any
Restricted Subsidiary has Incurred any Debt that remains outstanding
or Repaid any Debt, or
(B) the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio is or includes an Incurrence or
Repayment of Debt,
Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Incurrence or
Repayment as if such Debt was Incurred or Repaid on the first day of
such period, provided that, in the event of any such Repayment of
Debt, EBITDA for such period shall be calculated as if the Company or
such Restricted Subsidiary had not earned any interest income actually
earned during such period in respect of the funds used to Repay such
Debt, and
(2) if
(A) since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Sale or an Investment
5
(by merger or otherwise) in any Restricted Subsidiary (or any Person
which becomes a Restricted Subsidiary) or an acquisition of Property
which constitutes all or substantially all of an operating unit of a
business,
(B) the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio is such an Asset Sale, Investment
or acquisition, or
(C) 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 such an Asset Sale, Investment or acquisition,
EBITDA for such period shall be calculated after giving pro forma
effect to such Asset Sale, Investment or acquisition as if such Asset
Sale, Investment or acquisition (and, as set forth above, the
Incurrence or Repayment of any Debt in connection therewith) occurred
on the first day of such period.
If any Debt bears a floating rate of interest and is being given pro
forma effect, the interest expense on such Debt shall be calculated as if the
base interest rate in effect for such floating rate of interest on the date of
determination had been the applicable base interest rate for the entire period
(taking into account any Interest Rate Agreement applicable to such Debt if such
Interest Rate Agreement has a remaining term of at least 12 months or, if
earlier, through the maturity of such Debt). In the event the Capital Stock of
any Restricted Subsidiary is sold during the period, the Company shall be
deemed, for purposes of clause (1) above, to have Repaid during such period the
Debt of such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Debt after such sale.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent Incurred by the Company or its Restricted Subsidiaries,
(a) interest expense attributable to leases constituting part of a
Sale and Leaseback Transaction and to Capital Lease Obligations,
(b) amortization of debt discount and debt issuance cost, including
commitment fees,
(c) capitalized interest,
(d) non-cash interest expense,
(e) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(f) net costs associated with Hedging Obligations (including
amortization of fees),
(g) Disqualified Stock Dividends,
(h) Preferred Stock Dividends;
(i) interest Incurred in connection with Investments in discontinued
operations;
(j) interest accruing on any Debt of any other Person to the extent
such Debt is Guaranteed by the Company or any Restricted Subsidiary; and
(k) the cash contributions to any employees stock ownership plan or
similar trust to the extent such contributions are used by such plan or trust to
pay interest or fees to any Person (other than the Company) in connection with
Debt Incurred by such plan or trust.
6
For purposes of the foregoing, total interest expense will be
determined after giving effect to any net payments made or received by the
Company and its Restricted Subsidiaries with respect to Interest Rate
Agreements.
"Consolidated Net Income" means, for any period, the net income
(loss) of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income:
(a) any net income (loss) of any Person (other than the Company) if
such person is not a Restricted Subsidiary, except that:
(1) subject to the exclusion contained in clause (d) below, the
Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a
Restricted Subsidiary, to the limitations contained in clause (c)
below), and
(2) the Company's equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net
Income to the extent such loss has been funded with cash by the
Company or a Restricted Subsidiary;
(b) any net income (loss) of any person acquired by the Company or
any of its consolidated Subsidiaries in a pooling of interests transaction for
any period prior to the date of such acquisition;
(c) any net income (loss) of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions on the payment of dividends or
the making of distributions, directly or indirectly, to the Company, except
that:
(1) subject to the exclusion contained in clause (d) below, the
Company's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash that was permitted to be distributed
by such Restricted Subsidiary during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to another
Restricted Subsidiary, to the limitation contained in this clause
(1)), and
(2) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(d) Any gain or loss realized upon the sale or other disposition of
any property of the Company or any of its consolidated Subsidiaries (including
pursuant to any Sale and Leaseback Transaction) that is not sold or otherwise
disposed of in the ordinary course of business;
(e) any gain or loss that is extraordinary (as determined in
accordance with GAAP);
(f) any restructuring charges (as determined in accordance with gaap)
plus any other non-cash charges associated with facility closures or production
line shutdowns such as accelerated depreciation and amortization and any gain or
loss in connection with the extinguishment of Debt; and
(g) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for purposes of Section 4.10 hereof only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under such
covenant pursuant to clause (c)(3) thereof.
7
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as the
total assets (less accumulated depreciation and amortization, allowances for
doubtful receivables, other applicable reserves and other items properly
deductible under GAAP) of the Company and its Restricted Subsidiaries, after
giving effect to purchase accounting and after deducting therefrom Consolidated
Current Liabilities and, to the extent otherwise included, the amounts of
(without duplication):
(a) intangible assets, including the excess of cost over fair market
value of assets or businesses acquired, goodwill, trademarks, trade names,
patents, unamortized debt discount and accumulated organizational expenses;
(b) Minority interests in consolidated Subsidiaries held by Persons
other than the Company or any Restricted Subsidiary;
(c) treasury stock;
(d) cash or securities set aside and held in a sinking or other
analogous fund established for the purpose of redemption or other retirement of
Capital Stock to the extent such obligation is not reflected in Consolidated
Current Liabilities; and
(e) Investments in and assets of Unrestricted Subsidiaries.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 hereof or such other address as to which
the Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, the Exit Credit Facility and one or more other debt or
commercial paper facilities with banks or other institutional lenders (including
providing for revolving credit loans, term loans, receivables or inventory
financing including through the sale of receivables or inventory to such lenders
or to special purpose, bankruptcy remote entities formed to borrow from such
lenders against such receivables or inventory) or trade letters of credit, in
each case together with any extensions, revisions, refinancings or replacements
thereof.
"Currency Exchange Protection Agreement" means, in respect of a
Person, any foreign exchange contract, currency swap agreement, currency option
or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Custodian" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
Custodian with respect to the Notes, any and all successors thereto appointed as
custodian hereunder and having become such pursuant to the applicable provisions
of this Indenture.
"Debt" means, with respect to any Person on any date of determination
(without duplication):
(a) debt of such Person for money borrowed and debt evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable;
(b) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale and Leaseback Transactions entered into by such Person;
(c) all obligations of such Person issued or assumed as the deferred
purchase price of Property, all conditional sale obligations of such Person and
all obligations of such person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(d) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (a) through (c) above) entered
8
Into in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the third Business Day following receipt by
such Person of a demand for reimbursement following payment on the letter of
credit);
(e) the amount of all obligations of such Person with respect to the
Repayment of any Disqualified Stock or, with respect to any Subsidiary of such
Person, any Preferred Stock (but excluding, in each case, any accrued
dividends):
(f) all obligations of the type referred to in clauses (a) through
(e) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise;
(g) all obligations of the type referred to in clauses (a) through
(f) of other persons secured by any Lien on any Property of such Person (whether
or not such obligation is assumed by such Person), the amount of such obligation
being deemed to be the lesser of the value of such Property or the amount of the
obligation so secured; and
(h) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
The amount of Debt of any Person at any date shall be the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable, in either case at the option of the
holder thereof) or otherwise:
(a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise,
(b) Is or may become redeemable or repurchaseable at the option of
the holder thereof, in whole or in part, or
(c) is convertible or exchangeable at the option of the holder
thereof for Debt or Disqualified Stock,
on or prior to, in the case of clause (a), (b) or (c), the first anniversary
after the Stated Maturity of the Notes.
"Disqualified Stock Dividends" means all dividends with respect to
Disqualified Stock of the Company held by Persons other than a Restricted
Subsidiary.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
9
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any State or territory of
the United States or the District of Columbia.
"EBITDA" means, for any period, an amount equal to, for the Company
and its consolidated Restricted Subsidiaries:
(a) the sum of Consolidated Net Income for such period, plus the
following to the extent included in Consolidated Net Income for such period:
(1) the provision for taxes based on income or profits or
utilized in computing net loss,
(2) Consolidated Interest Expense,
(3) depreciation,
(4) amortization,
(5) non-capitalized transaction costs in connection with actual
or proposed financings, acquisitions or divestitures,
(6) any expenses after the effective date of the Plan of
Reorganization that are included in cost of goods sold arising from
adjustments to inventory that are made as a result of the application
fresh start accounting; and
(7) any other non-cash items, including without limitation, any
non-cash adjustments as a result of the application of fresh start
accounting (other than any such non-cash item to the extent that it
represents an accrual of or reserve for cash expenditures in any
future period), minus
(b) all non-cash items increasing Consolidated Net Income for such
period (other than any such non-cash item to the extent that it will result in
the receipt of cash payments in any future period).
Notwithstanding the foregoing clause (a), the provision for taxes and
the depreciation, amortization and non-cash items of a Restricted Subsidiary
shall be added to Consolidated Net Income to compute EBITDA only to the extent
(and in the same proportion) that the net income of such Restricted Subsidiary
was included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its shareholders.
"Equity Interests" means Qualified Capital Stock and all warrants,
options or other rights to acquire Qualified Capital Stock, but excluding any
debt security that is convertible into, or exchangeable for, Qualified Capital
Stock.
"Equity Offering" means a primary offering of common stock of the
Company or an offering of capital stock of any direct or indirect parent of the
Company.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear systems, and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means Notes that may be issued in an Exchange Offer
pursuant to Section 2.06(e)(iv) hereof as evidence of the same continuing Debt
of the Company under, and in exchange for, any Notes.
10
"Exchange Offer" means an offer by the Company to issue and deliver
to the Holders that are not prohibited by any law or policy of the Commission
from participating in such offer, in exchange for any Notes, a like principal
amount of Exchange Notes, as set forth in a Registration Rights Agreement.
"Exit Credit Facility" means the $[ ] million revolving credit and
term loan facility to be entered into on or before the Issue Date between the
Company,[ ], as agent, and the lenders thereunder.
"Floating Rate Notes" means the floating rate notes, if any, issued
by the Company in satisfaction of claims pursuant to the Plan of Reorganization.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary which
is not organized under the laws of the United States of America or any State
thereof or the District of Columbia.
"GAAP" means United States generally accepted accounting principles
as in effect on the Issue Date, including those set forth:
(a) in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants,
(b) in the statements and pronouncements of the Financial Accounting
Standards Board,
(c) in such other statements by such other entity as approved by a
significant segment of the accounting profession, and
(d) the rules and regulations of the Commission governing the
inclusion of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the Exchange
act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the Commission.
"Global Note Legend" means the legend set forth in Section
2.06(f)(ii) hereof, which is required to be placed on all Global Notes issued
under this Indenture.
"Global Notes" means one or more global Notes registered in the name
of the Depositary or its nominee issued in accordance with Article 2 hereof
substantially in the form of Exhibit A hereto and bearing the Global Note Legend
and including the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt of such other Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
Capital Stock, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise), or
(b) entered into for the purpose of assuring or protecting in any
other manner the obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include (i) endorsements
for collection or deposit in the ordinary course of business or (ii) a
contractual commitment by one Person to invest in another Person for so long as
such Investment is reasonably expected to constitute a Permitted Investment
under clause (a), (b) or (c) of the definition of "Permitted Investment." The
term "Guarantee" used as a verb has a corresponding meaning.
"guarantor" means any Person Guaranteeing any obligation.
11
"Hedging Obligations" of any Person means any obligation of such
Person pursuant to any Interest Rate Agreement, Currency Exchange Protection
Agreement or Commodity Price Protection Agreement.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with and registered in the name of the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of any Notes
that may be sold to Institutional Accredited Investors.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by merger, conversion, exchange or otherwise),
extend, assume, guarantee or become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or obligation on the balance sheet of such Person (and "Incurrence"
and "Incurred" shall have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time, and is not theretofore classified as Debt, becoming Debt
shall not be deemed an Incurrence of such Debt; provided further, however, that
any Debt or other obligations of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary; and provided further, however, that solely for purposes of
determining compliance with Section 4.09 hereof, amortization of debt discount
shall not be deemed to be the Incurrence of Debt, provided that in the case of
Debt sold at a discount, the amount of such Debt Incurred shall at all times be
the aggregate principal amount at Stated Maturity.
"Indenture" means this instrument, as originally executed or as it
may from time to time be supplemented or amended in accordance with Article 9
hereof.
"Independent Financial Advisor" means an investment banking firm of
national standing or any third party appraiser of national standing, provided
that such firm or appraiser is not an Affiliate of the Company.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means $[ ] million aggregate principal amount of
Notes issued under this Indenture on the date hereof pursuant to the Plan of
Reorganization.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Payment Dates" shall have the meaning set forth in
paragraph 1 of the Note.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect against fluctuations in interest
rates.
"Investment" by any Person means any direct or indirect loan (other
than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of such Person), advance or other
extension of credit or capital contribution (by means of transfers of cash or
other Property to others or payments for Property or services for the account or
use of others, or otherwise) to, or Incurrence of a guarantee of any obligation
of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Debt issued by, any other Person. "Investment"
shall include the portion (proportionate to the Company's equity interest in
such Subsidiary) of the fair market value of the net assets of any Subsidiary of
the Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary. In determining the amount of any Investment made by transfer of any
Property other than cash, such Property shall be valued at its fair market value
at the time of such Investment.
12
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's or BBB- (or the equivalent) by S&P.
"Investment Grade Status" shall be deemed to have been reached on the
date that the Notes have an Investment Grade Rating from both of the Rating
Agencies.
"Issue Date" means the date on which the Notes are initially issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the Corporate Trust
Office of the Trustee is located, or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, security interest, deposit
arrangement, lien or charge of any kind on or with respect to such Property
(including any Capital Lease Obligation, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing or any Sale and Leaseback Transaction).
"Moody's" means Moody's Investors Service, Inc. or any successor to
the rating agency business of Moody's Investors Service, Inc.
"Net Available Cash" from any Asset Sale means cash or Cash
Equivalents received therefrom (including 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 any other consideration
received in the form of assumption by the acquiring Person of Debt or other
obligations relating to the Property that is the subject of such Asset Sale or
received in any other non-cash form), in each case net of:
(a) all legal, title and recording tax expenses, commissions and
other reasonable and customary fees and expenses, including those relating to
legal and financial advisory services, incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a liability under
GAAP, as a consequence of such Asset Sale,
(b) all payments made on any Debt that is secured by any Property
subject to such Asset Sale, in accordance with the terms of any Lien upon or
other security agreement of any kind with respect to such property, or which
must by its terms, or in order to obtain a necessary consent to such Asset Sale,
or by applicable law, be repaid out of the proceeds from such asset sale,
(c) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of such
Asset Sale, and
(d) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with the
Property disposed in such Asset Sale and retained by the Company or any
Restricted Subsidiary after such Asset Sale.
"Non-Recourse Debt" means Debt:
(a) as to which neither the Company nor any Restricted Subsidiary (i)
provides credit support of any kind (including any undertaking, agreement or
instrument that would constitute Debt or the incurrence of any Lien), (ii) is
directly or indirectly liable as a guarantor or otherwise, or (iii) constitutes
the lender,
(b) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
Debt (other than the Notes) of the Company or any Restricted Subsidiary to
declare a default on such other Debt or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and
13
(c) As to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other amounts
payable under the documentation governing any Debt.
"Officer" means the principal executive officer, the principal
financial officer or any senior vice president of the Company.
"Officers' Certificate" means a certificate signed by two Officers of
the Company, at least one of whom shall be the principal executive officer or
principal financial officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream.
"Permitted Debt" means the following:
(a) Debt of the Company and any Subsidiary Guarantors evidenced by
the Notes and the Subsidiary Guarantees thereof and the other debt securities
Listed On Schedule 1.01 attached hereto;
(b) Debt of the Company and its Restricted Subsidiaries under the
Credit Facilities; provided that the aggregate principal amount of all such Debt
under the Credit Facilities at any one Time outstanding shall not exceed $600.0
Million less the aggregate principal amount then outstanding of any Floating
Rate Notes issued pursuant to the Plan of Reorganization;
(c) Debt of the Company or a Restricted Subsidiary in respect of
Capital Lease Obligations and Purchase Money Debt; provided that:
(1) the aggregate principal amount of such debt does not exceed
the fair market value (on the date of the incurrence thereof) of the
property acquired, constructed or leased (as determined in good faith
by the Company), and
(2) The aggregate principal amount of all Debt Incurred and then
outstanding pursuant to this clause (c) does not exceed $50.0 million
less the aggregate amount then outstanding of any Capital Lease
Obligations and Purchase Money Debt that were outstanding on the Issue
Date;
(d) Debt of the Company owing to and held by any Restricted
Subsidiary and Debt of a Restricted Subsidiary owing to and held by the Company
or any Restricted Subsidiary; provided that if the Company or any Restricted
Subsidiary is the Obligor On Any Such Debt Incurred After the Issue Date, Then
such Debt is expressly subordinated by its terms to the prior payment in full in
cash of the Notes or the Subsidiary Guarantees, as the case may be; provided,
further, however, that any subsequent issue or transfer of Capital Stock or
other event that results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of any such debt (Except to the
Company or a Restricted Subsidiary) shall be deemed, in each case, to Constitute
the Incurrence of Such Debt by the Issuer Thereof;
(e) Debt Under Interest Rate Agreements entered into by the Company
or a Restricted Subsidiary for the Purpose of Limiting Interest rate risk of the
Company or such Restricted Subsidiary related to Debt permitted under this
Indenture to be Outstanding and not for speculative purposes;
14
(f) Debt under Currency Exchange Protection Agreements entered into
by the Company or a Restricted Subsidiary for the purpose of limiting currency
exchange rate risks directly related to transactions entered into by the Company
or such Restricted Subsidiary and not for speculative purposes;
(g) Debt under Commodity Price Protection Agreements entered into by
the Company or a Restricted Subsidiary in the ordinary course of business and
not for speculative purposes;
(h) Debt in connection with one or more performance, completion and
surety bonds and completion guarantees Issued by the Company or a Restricted
Subsidiary in the Ordinary Course of Business or Pursuant to Self-insurance
obligations and not in connection With the borrowing of money or the obtaining
of advances or credit;
(i) Acquired Debt; provided that the Company could have incurred such
debt in accordance with clause (a) of the first paragraph of Section 4.09 hereof
on the date such Debt became acquired Debt;
(j) Debt incurred by Foreign Restricted Subsidiaries in an aggregate
amount not to exceed $100.0 million at any one yime outstanding less the
aggregate amount of any such Debt then outstanding that was outstanding on the
Issue Date;
(k) Qualified Distribution Guarantees of the Company or a Restricted
Subsidiary in an aggregate principal amount not to exceed $25.0 million at any
one time outstanding;
(l) Debt not to exceed $[ ] million (including any Guarantees)
outstanding on the Issue Date not otherwise described in clauses (a) Through (k)
above;
(m) Debt of the Company or a Restricted Subsidiary not otherwise
permitted to be incurred pursuant to (a) through (l) above and (n) and (o)
below, which together with any other Debt incurred pursuant to this clause (m)
and outstanding on the date of Such incurrence has an aggregate principal amount
outstanding at any one time not to exceed $25.0 million;
(n) Guarantees by the Company or any of its Restricted Subsidiaries
of Debt of the Company or Any Restricted Subsidiary to the extent the Company or
Such Restricted Subsidiary has Incurred Such Debt Pursuant to any other clause
of this covenant; and
(o) Permitted Refinancing Debt Incurred in Respect of Debt Incurred
Pursuant to Clause (a) of the first paragraph of Section 4.09 hereof and clauses
(a), (i) and (l) above and this clause (o).
For purposes of determining compliance with Section 4.09, (1) in the
event that an item of Debt meets the criteria of more than one of the categories
of Permitted Debt described in clauses (a) through (k) above or is entitled to
be incurred pursuant to Section 4.09(a), the Company shall classify such item of
Debt at the time of its Incurrence and will only be required to include the
amount and type of such Debt in one of the above clauses, (2) the Company will
be permitted at the time of such Incurrence to divide and classify an item of
Debt in more than one of the types of Debt described herein, and (3) any
Permitted Debt may later be reclassified, in whole or in part, as having been
Incurred pursuant to any other clause of this definition to the extent such Debt
could be Incurred pursuant to such clause at the time of such reclassification.
Notwithstanding the preceding sentence, all Debt outstanding under the Exit
Credit Facility will be deemed to be incurred pursuant to clause (b) above.
"Permitted Investment" means any Investment by the Company or a
Restricted Subsidiary in:
(a) the Company or any Restricted Subsidiary or any Person that will,
upon the making of such investment, Become a Restricted Subsidiary; provided
that the primary business of such Restricted Subsidiary is a Related Business;
provided, further, that any such Investments by the Company or Domestic
Subsidiaries in Foreign Restricted Subsidiaries shall not exceed $[ ] per annum;
15
(b) any Person if as a result of such Investment such Person is
merged or consolidated with or into, or transfers or conveys all or
substantially all its Property To, the Company or a Restricted Subsidiary, in
each case in accordance with Section 5.01 hereof; provided that such Person's
primary business is a Related Business;
(c) Cash Equivalents;
(d) receivables owing to the Company or a Restricted Subsidiary, if
created or acquired in the ordinary course of business;
(e) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;
(f) extensions of credit to suppliers and customers represented by
accounts receivable and loans, advances and extensions of credit to employees,
in each case, made in the ordinary course of business;
(g) stock, obligations or other securities received in settlement of
debts created in the ordinary course of business and owing to the Company or a
Restricted Subsidiary or in Satisfaction of claims or judgments;
(h) any Person to the extent such Investment represents the non-cash
portion of the consideration received in connection with an Asset Sale
consummated in compliance with Section 4.12 hereof;
(i) Investments for which the sole consideration provided is, or
which is funded out of the net proceeds of a substantially concurrent sale of,
Qualified Capital Stock of the Company; provided That the proceeds from the
issuance of such Qualified Capital Stock shall not be (and have not been)
included in any calculation pursuant to clause (c) of Section 4.10 hereof;
(j) so long as no Event of Default shall have occurred and be
continuing, Investments to fund the working capital requirements of the
Worthington/Armstrong Joint Venture in an Aggregate amount not in excess of
$25.0 million and Investments in other Permitted Joint Ventures in an aggregate
amount not in excess of $25.0 million at any one time outstanding;
(k) Investments Existing On the Issue Date in an amount not to exceed
the amount invested on such date;
(l) Hedging Obligations otherwise permitted under the Indenture; and
(m) so long as no Event of Default shall have occurred and be
continuing, other Investments in any Person after the Issue Date Made for fair
market value as determined in good faith by the Company That do not exceed
$100.0 million outstanding at any one time in the aggregate.
"Permitted Joint Venture" means any Person which is not a Subsidiary
and is, directly or indirectly, through its subsidiaries or otherwise, engaged
principally in a Related Business, and the Capital Stock of which is owned by
the Company or its Restricted Subsidiaries, on the one hand, and one or more
Persons other than the Company or any Affiliate of the Company, on the other
hand.
"Permitted Liens" means:
(a) Liens to secure Debt permitted to be Incurred under clause (b) of
the definition of "Permitted Debt" hereof;
(b) Liens to Secure Debt (x) Incurred for the purpose of financing
all or any part of the purchase price or cost of construction or improvement of
any Property, or (y) permitted to be Incurred under clause (c) of the definition
of "Permitted Debt" hereof; provided that any such Lien may not extend to any
Property of the Company or Any Restricted Subsidiary, Other Than the Property
acquired, constructed or leased with the proceeds of such Debt and any
improvements or accessions to such Property;
16
(c) Liens for taxes, assessments or governmental charges or levies On
the Property of the Company or any Restricted Subsidiary if the same shall not
at the time be delinquent, or are being contested in good faith and by
appropriate proceedings promptly instituted and diligently concluded;
(d) Liens imposed by law, such as statutory mechanics', workmen's,
materialmen's, operators' or similar Liens, on the Property of the Company or
any Restricted Subsidiary securing payment of obligations that are not more than
60 Days past due or are being contested in good faith and by appropriate
proceedings promptly instituted and diligently conducted and for which adequate
reserves have been established or other provisions have been made in accordance
with GAAP;
(e) survey exceptions, minor imperfections of, or encumbrances on,
title that do not interfere in any material respect with the value of the
property to which they apply or the conduct of the business of the Company and
its Restricted Subsidiaries;
(f) Liens on Property at the time the Company or any Restricted
Subsidiary acquired Such Property, including any acquisition by means of a
merger or consolidation with or into the Company or any Restricted Subsidiary;
provided, however, that any such lien is not incurred in anticipation of such
acquisition and does not extend to any other property of the Company or any
Restricted Subsidiary; provided, further that if any such Lien secures Acquired
Debt, the incurrence of such Acquired Debt was permitted by the terms of this
Indenture;
(g) Liens On the Property of a Person at the time such person becomes
a Restricted Subsidiary; provided, however, that any such Lien is not incurred
in anticipation of such acquisition and does not extend to any other property of
the Company or any other Restricted Subsidiary that is not a Direct Subsidiary
of such Person; provided, further, however that if any such lien secures Debt of
Such Person, the Incurrence of such Debt was permitted by the terms of this
Indenture;
(h) pledges or deposits by the Company or any Restricted Subsidiary
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 Debt) or leases to which the Company or any
Restricted Subsidiary is Party, or deposits to secure public or statutory
obligations of the Company, or deposits for the payment of rent, in each case
Incurred in the ordinary course of business;
(i) Utility Easements, Rights-of-way, Municipal and Zoning
Ordinances, Building Regulations and Such Other Encumbrances or Charges Against
Real Property as are of a Nature Generally Existing With Respect to Properties
of a Similar Character and That Do Not Materially Interfere With the Ordinary
Course of Business of the Company or of Any Restricted Subsidiary;
(j) Leases or Subleases Granted to Others That Do Not Materially
Interfere With the Ordinary Course of Business of the Company or of Any
Restricted Subsidiary;
(k) Liens arising from filing Uniform Commercial Code Financing
statements with respect to a lessor's rights in and to personal property leased
through a true lease in the ordinary course of business;
(l) Liens arising from the rendering of a final judgment or order
against the Company or any Restricted Subsidiary of the Company that does not
give rise to an Event of Default;
(m) Liens securing reimbursement obligations with respect to letters
of credit incurred in accordance with the Indenture That encumber documents and
other property relating to such letters of credit and the products and proceeds
thereof;
(n) Liens in favor of the Trustee arising under the Indenture;
17
(o) Liens in favor of the Company or any Subsidiary Guarantor;
(p) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of nondelinquent customs duties in connection
with the importation of goods;
(q) Liens encumbering deposits made in the ordinary course of
business to secure nondelinquent obligations arising from statutory, regulatory,
contractual or warranty requirements of the Company or its Restricted
Subsidiaries for which a reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made;
(r) Liens arising Out of consignment or similar arrangements for the
sale of goods entered into by the Company or any Restricted Subsidiary in the
ordinary course of business;
(s) Liens to secure Hedging Obligations Otherwise Permitted by This
Indenture;
(t) Liens on assets of Foreign Restricted Subsidiaries securing Debt
of Foreign Restricted Subsidiaries Permitted to be Incurred Under clause (j) of
the definition of "Permitted Debt" hereof;
(u) from and after the first date on which the Notes have Investment
Grade Status, Liens On any asset of the Company or a Restricted Subsidiary other
than (i) a principal operating facility located in the United States or (ii) any
Capital Stock or Debt of a Restricted Subsidiary owning such a facility;
(v) Liens existing on the Issue Date not otherwise described in
Clauses (a) Through (u) above;
(w) Liens on the Property of the Company or any Restricted Subsidiary
to secure any Refinancing, in whole or in part, of any Debt secured by Liens
referred to in clauses (b), (f), (g), (m) and (v) above; provided, however, that
Any Such Lien Shall be Limited to All or Part of the Same Property That Secured
the original lien (together with improvements and accessions to such Property)
and the aggregate principal amount of Debt that is secured by such Lien shall
not be increased to an amount greater than the sum of:
(1) the outstanding principal amount, or, if greater, the
committed amount, of the Debt secured by Liens described under clauses
(b), (f), (g), (m) and (v) above, as the case may be, at the time the
original Lien became a Permitted Lien under the Indenture, and
(2) an amount necessary to pay any fees and expenses, including
premiums and defeasance costs, incurred by the Company or such
Restricted Subsidiary in connection with such Refinancing; and
(x) Liens not otherwise permitted by clauses (a) through (w) above
encumbering assets having an aggregate fair market value not in excess of 7.5%
of Consolidated Net Tangible Assets, as determined based on the consolidated
balance sheet of the Company as of the end of the most recent fiscal quarter for
which financial statements are available.
"Permitted Refinancing Debt" means any Debt that Refinances any other
Debt, including any successive Refinancings, so long as:
(a) such Debt is in an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) not in excess of the sum
of:
(1) the aggregate principal amount (or if Incurred with original
issue discount, the aggregate accreted value) then outstanding of the
Debt being Refinanced, and
(2) an amount necessary to pay any reasonable and customary fees
and expenses, including premiums and defeasance costs, related to such
Refinancing,
18
(b) the Average Life of such Debt is equal to or greater than the
Average Life of the Debt being Refinanced,
(c) the Stated Maturity of Such Debt is no earlier than the Stated
Maturity of the Debt being Refinanced,
(d) the new Debt shall be Subordinated in right of payment to the
Notes if and to the same extent as the Debt that is being Refinanced is a
Subordinated Obligation; and
(e) such Debt is incurred either by the Company or by the Subsidiary
who is the obligor on the Debt being refinanced.
"Person" means any individual, corporation, company (including any
limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Plan of Reorganization" means [the Fourth Amended Plan of
Reorganization of Armstrong World Inc. as confirmed by the United States
Bankruptcy Court for the District of Delaware pursuant to the confirmation order
thereof dated [ ], 200[ ]].
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same Debt as that evidenced by such
particular Note; and for the purposes of this definition, any Note authenticated
and delivered under Section 2.08 in lieu of a lost, destroyed or stolen Note
shall be deemed to evidence the same Debt as the lost, destroyed or stolen Note.
"Preferred Stock" of any Person means any Capital Stock of a Person,
however designated, which entitles the holder thereof to a preference with
respect to the payment of dividends, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of such Person, over
shares of any other class of Capital Stock issued by such Person.
"Preferred Stock Dividends" means all dividends with respect to
Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Restricted Subsidiary.
"Private Placement Legend" means the legend set forth in Section
2.06(f)(i) hereof.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms hereof, a calculation performed in accordance
with Article 11 of Regulation S-X promulgated under the Securities Act.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person. For purposes of any calculation required pursuant to the
Indenture, the value of any Property shall be its fair market value as
determined in good faith by the Company.
"Purchase Money Debt" means Debt Incurred to finance the acquisition,
construction or lease by the Company or a Restricted Subsidiary of Property,
including additions and improvements thereto (or the acquisition of Capital
Stock of a Person owning such assets); provided, however, that such Debt is
Incurred within 180 days after the acquisition, construction or lease of such
Property or Capital Stock by the Company or such Restricted Subsidiary.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Capital Stock" means, with respect to any Person, any
Capital Stock of such Person that is not Disqualified Stock or convertible into
or exchangeable or exercisable for Disqualified Stock.
19
"Qualified Distributor Guarantee" means any guarantee by the Company
or any of its Subsidiaries with respect to any Debt of a distributor of products
of the Company or any of its Subsidiaries (other than distributors that are
Affiliates of the Company), to the extent the grant of any such guarantee
relates only to the repurchase of the distributor's inventory and is in the
ordinary course of business of the Company or the applicable Restricted
Subsidiary.
"Rating Agencies" mean Moody's and S&P.
"Refinance" means, in respect of any Debt, to refinance, extend,
renew, refund, repay, prepay, repurchase, redeem, defease or retire, or to issue
other Debt, in exchange or replacement for, such Debt. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Registration Rights Agreement" means one or more registration rights
agreements between the Company and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Company to the purchasers of Notes to register
such Notes under the Securities Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified on the face of the Note.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
any Notes that may be sold in reliance on Rule 903 of Regulation S.
"Related Business" means any business that is related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Issue Date.
"Repay" means, in respect of any Debt, to repay, prepay, repurchase,
redeem, legally defease or otherwise retire such Debt. "Repayment" and "Repaid"
shall have correlative meanings. For purposes of Section 4.12 hereof and the
definition of "Consolidated Interest Coverage Ratio," Debt shall be considered
to have been Repaid only to the extent the related loan commitment, if any,
shall have been permanently reduced in connection therewith.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means one or more Definitive Notes
bearing the Private Placement Legend.
"Restricted Global Notes" means one or more 144A Global Notes, IAI
Global Notes and Regulation S Global Notes and any other Global Notes bearing
the Private Placement Legend.
"Restricted Payment" means
(a) any dividend or distribution (whether made in cash, securities or
other Property) declared or paid on or with respect to any shares of Capital
Stock of the Company or any Restricted Subsidiary, except for any dividend or
distribution That is made solely to the Company or a Restricted Subsidiary (and,
if such Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, to
the other shareholders of such Restricted Subsidiary on a pro rata basis or on a
basis that results in the receipt by the Company or a Restricted Subsidiary of
dividends or distributions of greater value than it would receive on a pro rata
basis) or any dividend or distribution payable solely in shares of Capital Stock
(other than Disqualified Stock) of the Company;
20
(b) the purchase, repurchase, redemption, acquisition or retirement
for value of any Capital Stock of the Company or any Restricted Subsidiary
(other than from the Company or a Restricted Subsidiary);
(c) the purchase, repurchase, redemption, acquisition or retirement
for value, prior to the date for any scheduled maturity, sinking fund or
amortization or other installment payment, or mandatory redemption, of any
Subordinated Obligation (other than any Subordinated Obligation owed to the
Company or any Restricted Subsidiary);
(d) any Investment (other than Permitted Investments) in any Person;
or
(e) the issuance, sale or other disposition of Capital Stock of any
Restricted Subsidiary to a Person other than the Company or another Restricted
Subsidiary if the result Thereof is that such Restricted Subsidiary shall cease
to be a Restricted Subsidiary, in which event the amount of such "Restricted
Payment" shall be the fair market value of the remaining interest, if any, in
Such Former Restricted Subsidiary Held by the Company and the Other Restricted
Subsidiaries (as determined in good faith by the Company).
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor to the rating agency business thereof.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such Property to another Person and
the Company or a Restricted Subsidiary leases it from such Person.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "significant subsidiary" of the Company within the meaning of Rule 1-02(h)
(1) or (2) under Regulation S-X promulgated by the Commission as in effect on
the Issue Date.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 2.09 hereof.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the 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 Obligations" means any Debt of the Company or a
Restricted Subsidiary, whether outstanding on the date the Notes are first
issued or thereafter Incurred, which is subordinate or junior in right of
payment to the Notes or any guarantee of such Restricted Subsidiary, as the case
may be, pursuant to a written agreement to that effect.
21
"Subsidiary," with respect to any Person, means, in respect of any
Person, any corporation, company (including any limited liability company),
association, partnership, joint venture or other business entity of which a
majority of the total voting power of the Voting Stock is at the time owned or
controlled, directly or indirectly, by:
(a) such Person
(b) such Person and one or more Subsidiaries of such Person, or
(c) one or more Subsidiaries of such Person.
"Subsidiary Guarantee" means a guarantee on the terms set forth in
Article 10 hereof by a Subsidiary Guarantor of the Company's obligations with
respect to the Notes.
"Subsidiary Guarantor" means each Domestic Subsidiary of the Company
and any other Subsidiary that becomes a Subsidiary Guarantor pursuant to Section
4.17 hereof.
"Surviving Person" means the surviving Person formed by a merger,
consolidation or amalgamation and, for purposes of Section 5.01 hereof, a Person
to whom all or substantially all of the Property of the Company or a Subsidiary
Guarantor is sold, transferred, assigned, leased, conveyed or otherwise
disposed.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Definitive Notes" means one or more Definitive Notes
that do not and are not required to bear the Private Placement Legend.
"Unrestricted Global Notes" means one or more Global Notes that do
not and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means
(a) any Subsidiary of the Company that is designated after the Issue
Date as an Unrestricted Subsidiary as permitted or required pursuant to Section
4.16 hereof and is not thereafter redesignated as a Restricted Subsidiary as
permitted pursuant thereto and the Subsidiary to be so designated:
(1) does not own any Capital Stock or Debt of, or own or hold any
Lien on any Property of the Company or any other Restricted Subsidiary;
(2) has no Debt other than Non-Recourse Debt;
(3) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company;
(4) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (i) to
subscribe for additional Capital Stock or (ii) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and
22
(5) has not Guaranteed or otherwise directly or indirectly provided
credit support for any Debt of the Company or any of its Restricted
Subsidiaries; and
(b) any Subsidiary of an Unrestricted Subsidiary.
"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 all classes of
Capital Stock or other interests (including partnership interests) of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
that is a Wholly Owned Subsidiary.
"Wholly Owned Subsidiary" means a Subsidiary of any Person, all of
the outstanding Capital Stock of which (other than any director's qualifying
shares or shares owned by foreign nationals to the extent mandated by applicable
law) is owned by such Person or one or more Wholly Owned Subsidiaries of such
Person.
"Worthington/Armstrong Joint Venture" means the joint venture between
the Company and Worthington established pursuant to the agreement dated [ ].
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Acceleration Notice"..................................................................6.02
"Affiliate Transaction"................................................................4.14
"Authentication Order".................................................................2.02
"Benefited Party"......................................................................10.01
"Change of Control Offer"..............................................................4.17
"Change of Control Purchase Price".....................................................4.17
"Covenant Defeasance"..................................................................8.03
"CUSIP" ...............................................................................2.12
"Defaulted Interest" ..................................................................2.09
"DTC"..................................................................................2.06
"Event of Default".....................................................................6.01
"Legal Defeasance".....................................................................8.02
"losses"...............................................................................7.07
"Note Register" .......................................................................2.03
"Offer Amount".........................................................................3.09
"Offer Period".........................................................................3.09
"Offer to Purchase"....................................................................3.09
"Paying Agent".........................................................................2.03
"Prepayment Offer".....................................................................4.12
"Purchase Date"........................................................................3.09
"Purchase Price".......................................................................3.09
"Registrar"............................................................................2.03
"Suspended Covenants"..................................................................4.19
"Suspension Period"....................................................................4.19
23
Section 1.03 Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) The Following TIA Terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes and the Subsidiary Guarantees;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
(c) All other terms used in this Indenture that are Defined by the
TIA, Defined by TIA reference to another Statute or Defined by Commission rule
under the TIA and not otherwise defined herein have the meanings so assigned to
them.
Section 1.04. Rules of Construction.
----------------------
UNLESS THE CONTEXT OTHERWISE REQUIRES:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) all references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
Subdivisions of this instrument as originally executed;
(f) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this indenture as a whole and not to any particular
Article, Section or other subdivision.
(g) "including" means "including Without Limitation;"
(h) provisions apply to successive events and transactions;
(i) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement or successor sections or rules
adopted by the Commission from time to time; and
(j) in the event that a transaction meets the criteria of more than
one category of permitted transactions or listed exceptions the Company may
classify such transaction as it, in its sole discretion, determines.
24
ARTICLE 2.
THE NOTES
---------
Section 2.01. Form and Dating.
----------------
(a) General. the Notes Shall be Known and Designated as the "[ ](4)%
Senior Notes Due 2010" of the Company. the Stated Maturity of the Notes Shall be
[ ], 201[ ](5). the Notes and the Trustee's Certificate of Authentication Shall
be Substantially in the Form of Exhibit a Hereto, Which is Hereby Incorporated
in and Expressly Made Part of This Indenture. the Notes May Have Notations,
Legends or Endorsements Required by Law, Stock Exchange Rule or Usage in
Addition to Those Set Forth On Exhibit A. Each Note Shall be Dated the Date of
Its Authentication. the Notes Shall be in Denominations of $1,000 and Integral
Multiples Thereof. the Terms and Provisions Contained in the Notes Shall
Constitute, and are Hereby Expressly Made, a Part of This Indenture, and the
Company, the Subsidiary Guarantors and the Trustee, by Their Execution and
Delivery of This Indenture, Expressly Agree to Such Terms and Provisions and to
be Bound Thereby. However, to the Extent Any Provision of Any Note Conflicts
With the Express Provisions of This Indenture, the Provisions of This Indenture
Shall Govern and be Controlling.
(b) Form of Notes. Notes Shall be Issued Initially in Global Form and
Shall be Substantially in the Form of Exhibit a Attached Hereto (Including the
Global Note Legend Thereon and the "Schedule of Exchanges of Interests in the
Global Note" Attached Thereto). Notes Issued in Definitive Form Shall be
Substantially in the Form of Exhibit a Attached Hereto (But Without the Global
Note Legend Thereon and Without the "Schedule of Exchanges of Interests in the
Global Note" Attached Thereto). Each Global Note Shall Represent Such of the
Outstanding Notes as Shall be Specified Therein and Each Shall Provide That It
Shall Represent the Aggregate Principal Amount of Outstanding Notes From Time to
Time Endorsed Thereon and That the Aggregate Principal Amount of Outstanding
Notes Represented Thereby May From Time to Time be Reduced or Increased, as
Appropriate, to Reflect Exchanges and Redemptions and Transfers of Interests
Therein. Any Endorsement of a Global Note to Reflect the Amount of Any Increase
or Decrease in the Aggregate Principal Amount of Outstanding Notes Represented
Thereby Shall be Made by the Trustee or the Custodian, At the Direction of the
Trustee, in Accordance With Instructions Given by the Holder Thereof as Required
by Section 2.06 Hereof.
(c) Book-entry Provisions. Participants and Indirect Participants
Shall Have No Rights Under This Indenture With Respect to Any Global Note Held
On Their Behalf by the Depositary or by the Trustee as the Custodian for the
Depositary or Under Such Global Note, and the Depositary Shall be Treated by the
Company, the Trustee and Any Agent of the Company or the Trustee as the Absolute
Owner of Such Global Note for All Purposes Whatsoever. Notwithstanding the
Foregoing, Nothing Herein Shall Prevent the Company, the Trustee or Any Agent of
the Company or the Trustee From Giving Effect to Any Written Certification,
Proxy or Other Authorization Furnished by the Depositary or Impair, as Between
the Depositary and Its Participants or Indirect Participants, the Applicable
Procedures or the Operation of Customary Practices of the Depositary Governing
the Exercise of the Rights of a Holder of a Beneficial Interest in Any Global
Note.
(d) Euroclear and Clearstream Procedures Applicable. the Provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream Shall be Applicable to
Transfers of Beneficial Interests in Global Notes That are Held by Participants
Through Euroclear or Clearstream.
(e) Certificated Securities. If At Any Time the Depositary Notifies
the Company That It is Unwilling or Unable to Continue as Depositary or If At
Any Time the Depositary Shall No Longer be Eligible Under This Section 2.01, the
Company Shall Appoint a Successor Depositary. If a Successor Depositary is Not
Appointed by the Company Within 120 Days After the Company Receives Such Notice
or Becomes Aware of Such Ineligibility, the Company Will Execute, and the
- -------------------------
(4) The interest rate for the Notes shall be determined in the manner described
in the definition of "Plan Notes" contained in the Plan of Reorganization.
(5) The seventh anniversary of the Issue Date.
25
Trustee, Upon Receipt of a Company Order for the Authentication and Delivery of
Definitive Notes, Will Authenticate and Deliver Definitive Notes, in Authorized
Denominations, in an Aggregate Principal Amount and Like Terms and Tenor Equal
to the Principal Amount of the Global Notes in Exchange for Such Global Notes.
The Company may at any time and in its sole discretion determine that
Global Notes shall no longer be represented by such Global Notes. In such event,
the Company will execute, and the Trustee, upon receipt of a Company order for
the authentication and delivery of Definitive Notes of the same terms and tenor,
will authenticate and deliver Definitive Notes, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Notes in exchange for such Global Notes.
If specified by the Company pursuant to Section 2.02 with respect to
Global Notes, the Depositary may surrender Global Notes in exchange in whole or
in part for Definitive Notes and of like terms and tenor on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee upon receipt of a Company order for the authentication
and delivery of Definitive Notes, shall authenticate and deliver, without
service charge to the holders:
(i) To Each Person Specified by Such Depositary a New Definitive
Note or Notes of the Same Tenor, in Authorized Denominations, in an
Aggregate Principal Amount Equal to and in Exchange for Such Person's
Beneficial Interest in the Global Note; and
(ii) To Such Depositary a New Global Note in a Denomination Equal
to the Difference, If Any, Between the Principal Amount of the
Surrendered Global Note and the Aggregate Principal Amount of the
Definitive Notes Delivered to Holders Pursuant to Clause (A) Above.
Upon the exchange of a Global Note for Definitive Notes, such Global
Note shall be cancelled by the Trustee or an agent of the Company or the
Trustee. Definitive Notes in exchange for a Global Note pursuant to this Section
2.01 shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee in writing. The Trustee or such agent shall deliver such Notes to
or as directed by the Persons in whose names such Notes are so registered or to
the Depositary.
Section 2.02. Execution and Authentication.
-----------------------------
(a) One Officer Shall Sign the Notes for the Company by Manual or
Facsimile Signature.
(b) If an Officer Whose Signature is On a Note No Longer Holds That
Office At the Time a Note is Authenticated, the Note Shall Nevertheless be
Valid.
(c) a Note Shall Not be Valid Until Authenticated by the Manual
Signature of the Trustee. the Signature Shall be Conclusive Evidence That the
Note has Been Authenticated Under This Indenture.
(d) the Trustee Shall, Upon a Written Order of the Company Signed by
an Officer (An "Authentication Order"), Authenticate Notes for Original Issue.
(e) the Trustee May Appoint an Authenticating Agent Acceptable to the
Company to Authenticate Notes. Unless Otherwise Provided in the Appointment, an
Authenticating Agent May Authenticate Notes Whenever the Trustee May Do So. Each
Reference in This Indenture to Authentication by the Trustee Includes
Authentication by Such Agent. an Authenticating Agent has the Same Rights as an
Agent to Deal With Holders or an Affiliate of the Company or Any of Their
Respective Subsidiaries.
Section 2.03. Registrar, Paying Agent and Depositary.
---------------------------------------
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep in a register of the Notes (the "NOTE REGISTER") the names
26
and addresses of the Holders and of their transfer and exchange. The Company,
upon prior written notice to the Trustee, may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. The Company or any of its
subsidiaries may act as Paying Agent or Registrar. The Company shall enter into
an appropriate agency agreement with any Agent not a party to this Indenture,
which shall incorporate the provisions of the Trust Indenture Act. Such
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 such
Agent.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
Section 2.05. Holder Lists.
-------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss.312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least seven Business
Days before each Interest Payment Date and at such other times as the Trustee
may request in writing, a list in such form and as of such date or such shorter
time as the Trustee may allow, as the Trustee may reasonably require of the
names and addresses of the Holders and the Company shall otherwise comply with
TIA ss.312(a).
Section 2.06. Transfer and Exchange.
----------------------
(a) Transfer and Exchange of Global Notes. a Global Note May Not be
Transferred as a Whole Except by the Depositary to a Nominee of the Depositary,
by a Nominee of the Depositary to the Depositary or to Another Nominee of the
Depositary, or by the Depositary or Any Such Nominee to a Successor Depositary
or a Nominee of Such Successor Depositary. All Global Notes Will be Exchanged by
the Company for Definitive Notes If (1) the Company Delivers to the Trustee
Notice From the Depositary That It is Unwilling or Unable to Continue to Act as
Depositary or That It is No Longer a Clearing Agency Registered Under the
Exchange Act And, in Either Case, a Successor Depositary is Not Appointed by the
Company Within 120 Days After the Date of Such Notice From the Depositary or (2)
the Company in Its Sole Discretion Determines That the Global Notes (In Whole
But Not in Part) Should be Exchanged for Definitive Notes and Delivers a Written
Notice to Such Effect to the Trustee; or (3) an Event of Default Entitling the
Holders to Accelerate Shall Have Occurred and be Continuing and the Registrar
has Received a Written Request From the Depositary to Issue Definitive Notes.
Upon the Occurrence of Any of the Preceding Events in (1), (2) or (3) Above,
Definitive Notes Shall be Issued in Denominations of $1,000 or Integral
Multiples Thereof and in Such Names as the Depositary Shall Instruct the Trustee
in Writing. Global Notes Also May be Exchanged or Replaced, in Whole or in Part,
as Provided in Sections 2.07 and 2.08 Hereof. Every Note Authenticated and
Delivered in Exchange For, or in Lieu Of, a Global Note or Any Portion Thereof,
Pursuant to This Section 2.06 or Section 2.07 or 2.08 Hereof, Shall be
Authenticated and Delivered in the Form Of, and Shall Be, a Global Note. a
Global Note May Not be Exchanged for Another Note Other Than as Provided in This
Section 2.06(A); However, Beneficial Interests in a Global Note May be
Transferred and Exchanged as Provided in Section 2.06(B), (C) or (E)(iv) Hereof.
27
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. the Transfer and Exchange of Beneficial Interests in the Global Notes
Shall be Effected Through the Depositary, in Accordance With the Provisions of
This Indenture and the Applicable Procedures. Beneficial Interests in the
Restricted Global Notes Shall be Subject to Restrictions On Transfer Comparable
to Those Set Forth Herein to the Extent Required by the Securities Act.
Transfers of Beneficial Interests in the Global Notes Also Shall Require
Compliance With Either Clause (I) or (Ii) Below, as Applicable, as Well as One
or More of the Other Following Clauses, as Applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial Interests in Any Restricted Global Note May be Transferred
to Persons Who Take Delivery Thereof in the Form of a Beneficial
Interest in the Same Restricted Global Note in Accordance With the
Transfer Restrictions Set Forth in the Private Placement Legend.
Beneficial Interests in Any Unrestricted Global Note May be
Transferred to Persons Who Take Delivery Thereof in the Form of a
Beneficial Interest in an Unrestricted Global Note. No Written Orders
or Instructions Shall be Required to be Delivered to the Registrar to
Effect the Transfers Described in This Section 2.06(B)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. in Connection With All Transfers and Exchanges of
Beneficial Interests That are Not Subject to Section 2.06(B)(i) Above,
the Transferor of Such Beneficial Interest Must Deliver to the
Registrar Either (A)(1) a Written Order From a Participant or an
Indirect Participant Given to the Depositary in Accordance With the
Applicable Procedures Directing the Depositary to Credit or Cause to
be Credited a Beneficial Interest in Another Global Note in an Amount
Equal to the Beneficial Interest to be Transferred or Exchanged and
(2) Instructions Given in Accordance With the Applicable Procedures
Containing Information Regarding the Participant Account to be
Credited With Such Increase or (B)(1) a Written Order From a
Participant or an Indirect Participant Given to the Depositary in
Accordance With the Applicable Procedures Directing the Depositary to
Cause to be Issued a Definitive Note in an Amount Equal to the
Beneficial Interest to be Transferred or Exchanged and (2)
Instructions Given by the Depositary to the Registrar Containing
Information Regarding the Person in Whose Name Such Definitive Note
Shall be Registered to Effect the Transfer or Exchange Referred to in
(B)(1) Above. Upon Consummation of an Exchange Offer by the Company in
Accordance With Section 2.06(E)(iv) Hereof, the Requirements of This
Section 2.06(B)(ii) Shall be Deemed to Have Been Satisfied Upon
Receipt by the Registrar of the Instructions Contained in the Letter
of Transmittal Delivered by the Holder of Such Beneficial Interests in
the Restricted Global Notes. Upon Satisfaction of All of the
Requirements for Transfer or Exchange of Beneficial Interests in
Global Notes Contained in This Indenture and the Notes or Otherwise
Applicable Under the Securities Act, the Trustee Shall Adjust the
Principal Amount of the Relevant Global Note(s) Pursuant to Section
2.06(G) Hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global
Note to Another Restricted Global Note. a Beneficial Interest in Any
Restricted Global Note May be Transferred to a Person Who Takes
Delivery Thereof in the Form of a Beneficial Interest in Another
Restricted Global Note If the Transfer Complies With the Requirements
of Section 2.06(B)(ii) Above and the Registrar Receives the Following:
(A) If the Transferee Will Take Delivery in the Form of a
Beneficial Interest in an 144A Global Note, Then the Transferor
Must Deliver a Certificate in the Form of Exhibit B Hereto,
Including the Certifications in Item (1) Thereof;
(B) If the Transferee Will Take Delivery in the Form of a
Beneficial Interest in a Regulation S Global Note, Then the
Transferor Must Deliver a Certificate in the Form of Exhibit B
Hereto, Including the Certifications in Item (2) Thereof; and
(C) If the Transferee Will Take Delivery in the Form of a
Beneficial Interest in a Iai Global Note, Then the Transferor
Must Deliver a Certificate in the Form of Exhibit B Hereto,
Including the Certifications and Certificates and Opinion of
Counsel Required by Item (3) Thereof, If Applicable.
28
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. a Beneficial Interest in Any Restricted Global Note May
be Exchanged by Any Holder Thereof for a Beneficial Interest in an
Unrestricted Global Note or Transferred to a Person Who Takes Delivery
Thereof in the Form of a Beneficial Interest in an Unrestricted Global
Note If the Exchange or Transfer Complies With the Requirements of
Section 2.06(B)(ii) Above And:
(A) Such Exchange or Transfer is Effected Pursuant to an
Exchange Offer in Accordance With the Applicable Registration
Rights Agreement and the Holder of the Beneficial Interest to be
Transferred, in the Case of an Exchange, or the Transferee, in
the Case of a Transfer, Makes the Certifications in the
Applicable Letter of Transmittal Required by Such Registration
Rights Agreement;
(B) Such Transfer is Effected Pursuant to an Effective Shelf
Registration Statement in Accordance With the Applicable
Registration Rights Agreement;
(C) Such Transfer is Effected by a Broker-dealer Pursuant to
an Effective Exchange Offer Registration Statement in Accordance
With the Applicable Registration Rights Agreement; or
(D) The Registrar Receives the Following:
(1) If the Holder of Such Beneficial Interest in a
Restricted Global Note Proposes to Exchange Such Beneficial
Interest for a Beneficial Interest in an Unrestricted Global
Note, a Certificate From Such Holder in the Form of Exhibit C
Hereto, Including the Certifications in Item (1)(A) Thereof; or
(2) If the Holder of Such Beneficial Interest in a
Restricted Global Note Proposes to Transfer Such Beneficial
Interest to a Person Who Shall Take Delivery Thereof in the Form
of a Beneficial Interest in an Unrestricted Global Note, a
Certificate From Such Holder in the Form of Exhibit B Hereto,
Including the Certifications in Item (4) Thereof;
and, in each such case set forth in this clause (D), if the
Registrar and the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to clause (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in Unrestricted
Global Notes for Beneficial Interests in Restricted Global Notes
Prohibited. Beneficial Interests in an Unrestricted Global Note Cannot
be Exchanged For, or Transferred to Persons Who Take Delivery Thereof
in the Form Of, a Beneficial Interest in a Restricted Global Note.
(C) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If Any Holder of a Beneficial Interest in a
Restricted Global Note Proposes to Exchange Such Beneficial Interest
for a Restricted Definitive Note or to Transfer Such Beneficial
Interest to a Person Who Takes Delivery Thereof in the Form of a
Restricted Definitive Note, Then, Upon Receipt by the Registrar of the
Following Documentation:
29
(A) If the Holder of Such Beneficial Interest in a
Restricted Global Note Proposes to Exchange Such Beneficial
Interest for a Restricted Definitive Note, a Certificate From
Such Holder in the Form of Exhibit C Hereto, Including the
Certifications in Item (2)(A) Thereof;
(B) If Such Beneficial Interest is Being Transferred to a
Qib in Accordance With Rule 144A, a Certificate to the Effect Set
Forth in Exhibit B Hereto, Including the Certifications in Item
(1) Thereof;
(C) If Such Beneficial Interest is Being Transferred to a
Non-u.s. Person in an Offshore Transaction in Accordance With
Rule 903 or Rule 904, a Certificate to the Effect Set Forth in
Exhibit B Hereto, Including the Certifications in Item (2)
Thereof;
(D) If Such Beneficial Interest is Being Transferred
Pursuant to an Exemption From the Registration Requirements of
the Securities Act in Accordance With Rule 144 Under the
Securities Act, a Certificate to the Effect Set Forth in Exhibit
B Hereto, Including the Certifications in Item (3)(A) Thereof;
(E) If Such Beneficial Interest is Being Transferred to an
Institutional Accredited Investor in Reliance On an Exemption
From the Registration Requirements of the Securities Act Other
Than Those Listed in Clauses (B) Through (D) Above, a Certificate
to the Effect Set Forth in Exhibit B Hereto, Including the
Certifications, Certificates and Opinion of Counsel Required by
Item (3)(D) Thereof, If Applicable;
(F) If Such Beneficial Interest is Being Transferred to the
Company or Any of Its Subsidiaries, a Certificate to the Effect
Set Forth in Exhibit B Hereto, Including the Certifications in
Item (3)(B) Thereof; or
(G) If Such Beneficial Interest is Being Transferred
Pursuant to an Effective Registration Statement Under the
Securities Act, a Certificate to the Effect Set Forth in Exhibit
B Hereto, Including the Certifications in Item (3)(C) Thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee shall mail or
deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. a Holder of a Beneficial Interest in a
Restricted Global Note May Exchange Such Beneficial Interest for an
Unrestricted Definitive Note or May Transfer Such Beneficial Interest
to a Person Who Takes Delivery Thereof in the Form of an Unrestricted
Definitive Note Only If:
(A) Such Exchange or Transfer is Effected Pursuant to an
Exchange Offer in Accordance With the Applicable Registration
Rights Agreement and the Holder of Such Beneficial Interest, in
the Case of an Exchange, or the Transferee, in the Case of a
30
Transfer, Certifies in the Applicable Letter of Transmittal That
It is Not (1) a Broker-dealer, (2) a Person Participating in the
Distribution of the Exchange Notes or (3) a Person Who is an
Affiliate (As Defined in Rule 144) of the Company;
(B) Such Transfer is Effected Pursuant to an Effective Shelf
Registration Statement in Accordance With the Applicable
Registration Rights Agreement;
(C) Such Transfer is Effected by a Broker-dealer Pursuant to
an Effective Exchange Offer Registration Statement in Accordance
With the Applicable Registration Rights Agreement; or
(D) the Registrar Receives the Following:
(1) If the Holder of Such Beneficial Interest in a
Restricted Global Note Proposes to Exchange Such Beneficial
Interest for an Unrestricted Definitive Note, a Certificate From
Such Holder in the Form of Exhibit C Hereto, Including the
Certifications in Item (1)(B) Thereof; or
(2) If the Holder of Such Beneficial Interest in a
Restricted Global Note Proposes to Transfer Such Beneficial
Interest to a Person Who Shall Take Delivery Thereof in the Form
of an Unrestricted Definitive Note, a Certificate From Such
Holder in the Form of Exhibit B Hereto, Including the
Certifications in Item (4) Thereof;
And, in Each Such Case Set Forth in This Clause (D), If the
Registrar So Requests or If the Applicable Procedures So Require,
an Opinion of Counsel in Form Reasonably Acceptable to the
Registrar to the Effect That Such Exchange or Transfer is in
Compliance With the Securities Act and That the Restrictions On
Transfer Contained Herein and in the Private Placement Legend are
No Longer Required in Order to Maintain Compliance With the
Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If Any Holder of a Beneficial Interest
in an Unrestricted Global Note Proposes to Exchange Such Beneficial
Interest for a Definitive Note or to Transfer Such Beneficial Interest
to a Person Who Takes Delivery Thereof in the Form of a Definitive
Note, Then, Upon Satisfaction of the Conditions Set Forth in Section
2.06(B)(ii) Hereof, the Trustee Shall Cause the Aggregate Principal
Amount of the Applicable Global Note to be Reduced Accordingly
Pursuant to Section 2.06(G) Hereof, and the Company Shall Execute and
the Trustee Shall Authenticate and Mail or Deliver to the Person
Designated in the Instructions a Definitive Note in the Appropriate
Principal Amount. Any Definitive Note Issued in Exchange for a
Beneficial Interest Pursuant to This Section 2.06(C)(iii) Shall be
Registered in Such Name or Names and in Such Authorized Denomination
or Denominations as the Holder of Such Beneficial Interest Shall
Instruct the Registrar Through Instructions From the Depositary and
the Participant or Indirect Participant. the Trustee Shall Mail or
Deliver Such Definitive Notes to the Persons in Whose Names Such Notes
are So Registered. Any Definitive Note Issued in Exchange for a
Beneficial Interest Pursuant to This Section 2.06(C)(iii) Shall Not
Bear the Private Placement Legend.
(D) Transfer and Exchange of Definitive Notes for Beneficial
Interests in the Global Notes.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If Any Holder of a Restricted Definitive Note
Proposes to Exchange Such Note for a Beneficial Interest in a
Restricted Global Note or to Transfer Such Restricted Definitive Notes
to a Person Who Takes Delivery Thereof in the Form of a Beneficial
Interest in a Restricted Global Note, Then, Upon Receipt by the
Registrar of the Following Documentation:
(A) If the Holder of Such Restricted Definitive Note
Proposes to Exchange Such Note for a Beneficial Interest in a
Restricted Global Note, a Certificate From Such Holder in the
Form of Exhibit C Hereto, Including the Certifications in Item
(2)(B) Thereof;
31
(B) If Such Restricted Definitive Note is Being Transferred
to a Qib in Accordance With Rule 144A, a Certificate to the
Effect Set Forth in Exhibit B Hereto, Including the
Certifications in Item (1) Thereof;
(C) If Such Restricted Definitive Note is Being Transferred
to a Non-u.s. Person in an Offshore Transaction in Accordance
With Rule 903 or Rule 904, a Certificate to the Effect Set Forth
in Exhibit B Hereto, Including the Certifications in Item (2)
Thereof;
(D) If Such Restricted Definitive Note is Being Transferred
Pursuant to an Exemption From the Registration Requirements of
the Securities Act in Accordance With Rule 144, a Certificate to
the Effect Set Forth in Exhibit B Hereto, Including the
Certifications in Item (3)(A) Thereof;
(E) If Such Restricted Definitive Note is Being Transferred
to an Institutional Accredited Investor in Reliance On an
Exemption From the Registration Requirements of the Securities
Act Other Than Those Listed in Clauses (B) Through (D) Above, a
Certificate to the Effect Set Forth in Exhibit B Hereto,
Including the Certifications, Certificates and Opinion of Counsel
Required by Item (3)(D) Thereof, If Applicable;
(F) If Such Restricted Definitive Note is Being Transferred
to the Company or Any of Its Subsidiaries, a Certificate to the
Effect Set Forth in Exhibit B Hereto, Including the
Certifications in Item (3)(B) Thereof; or
(G) If Such Restricted Definitive Note is Being Transferred
Pursuant to an Effective Registration Statement Under the
Securities Act, a Certificate to the Effect Set Forth in Exhibit
B Hereto, Including the Certifications in Item (3)(C) Thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the
case of clause (B) above, the 144A Global Note, in the case of clause
(C) above, the Regulation S Global Note, and in all other cases, the
IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. a Holder of a Restricted Definitive Note
May Exchange Such Note for a Beneficial Interest in an Unrestricted
Global Note or Transfer Such Restricted Definitive Note to a Person
Who Takes Delivery Thereof in the Form of a Beneficial Interest in an
Unrestricted Global Note Only If:
(A) Such Exchange or Transfer is Effected Pursuant to an
Exchange Offer in Accordance With the Applicable Registration
Rights Agreement and the Holder, in the Case of an Exchange, or
the Transferee, in the Case of a Transfer, Makes the
Certifications in the Applicable Letter of Transmittal Required
by Such Registration Rights Agreement;
(B) Such Transfer is Effected Pursuant to an Effective Shelf
Registration Statement in Accordance With the Applicable
Registration Rights Agreement;
(C) Such Transfer is Effected by a Broker-dealer Pursuant to
an Effective Exchange Offer Registration Statement in Accordance
With the Applicable Registration Rights Agreement and the
Transferee Makes the Certifications in the Applicable Letter of
Transmittal Required by Such Registration Rights Agreement; or
32
(D) the Registrar Receives the Following:
(1) If the Holder of Such Definitive Notes Proposes to
Exchange Such Notes for a Beneficial Interest in the Unrestricted
Global Note, a Certificate From Such Holder in the Form of
Exhibit C Hereto, Including the Certifications in Item (1)(C)
Thereof; or
(2) If the Holder of Such Definitive Notes Proposes to
Transfer Such Notes to a Person Who Shall Take Delivery Thereof
in the Form of a Beneficial Interest in the Unrestricted Global
Note, a Certificate From Such Holder in the Form of Exhibit B
Hereto, Including the Certifications in Item (4) Thereof;
And, in Each Such Case Set Forth in This Clause (D), If the
Registrar So Requests or If the Applicable Procedures So Require,
an Opinion of Counsel in Form Reasonably Acceptable to the
Registrar to the Effect That Such Exchange or Transfer is in
Compliance With the Securities Act and That the Restrictions On
Transfer Contained Herein and in the Private Placement Legend are
No Longer Required in Order to Maintain Compliance With the
Securities Act.
Upon satisfaction of the conditions of any of the clauses in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase
or cause to be increased the aggregate principal amount of the Unrestricted
Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. a Holder of an Unrestricted Definitive Note
May Exchange Such Note for a Beneficial Interest in an Unrestricted
Global Note or Transfer Such Unrestricted Definitive Note to a Person
Who Takes Delivery Thereof in the Form of a Beneficial Interest in an
Unrestricted Global Note At Any Time. Upon Receipt of a Request for
Such an Exchange or Transfer, the Trustee Shall Cancel the Applicable
Unrestricted Definitive Note and Increase or Cause to be Increased the
Aggregate Principal Amount of One of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. an
Unrestricted Definitive Note Cannot be Exchanged For, or Transferred
to Persons Who Take Delivery Thereof in the Form Of, Beneficial
Interests in a Restricted Global Note.
(V) Issuance of Unrestricted Global Notes. If Any Such Exchange
or Transfer From a Definitive Note to a Beneficial Interest is
Effected Pursuant to Clauses (Ii)(b), (Ii)(d) or (Iii) Above At a Time
When an Unrestricted Global Note has Not Yet Been Issued, the Company
Shall Issue And, Upon Receipt of an Authentication Order in Accordance
With Section 2.02 Hereof, the Trustee Shall Authenticate One or More
Unrestricted Global Notes in an Aggregate Principal Amount Equal to
the Principal Amount of Definitive Notes So Transferred.
(E) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon Request by a Holder of Definitive Notes and Such Holder's Compliance With
the Provisions of This Section 2.06(E), the Registrar Shall Register the
Transfer or Exchange of Definitive Notes. Prior to Such Registration of Transfer
or Exchange, the Requesting Holder Shall Present or Surrender to the Registrar
the Definitive Notes Duly Endorsed or Accompanied by a Written Instruction of
Transfer in Form Satisfactory to the Registrar Duly Executed by Such Holder or
by Its Attorney, Duly Authorized in Writing. in Addition, the Requesting Holder
Shall Provide Any Additional Certifications, Documents and Information, as
Applicable, Required Pursuant to the Following Provisions of This Section
2.06(E).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note May be Transferred to and Registered in
the Name of Persons Who Take Delivery Thereof in the Form of a
Restricted Definitive Note If the Registrar Receives the Following:
33
(A) If the Transfer Will be Made Pursuant to Rule 144A, Then
the Transferor Must Deliver a Certificate in the Form of Exhibit
B Hereto, Including the Certifications in Item (1) Thereof;
(B) If the Transfer Will be Made Pursuant to Rule 903 or
Rule 904, Then the Transferor Must Deliver a Certificate in the
Form of Exhibit B Hereto, Including the Certifications in Item
(2) Thereof; and
(C) If the Transfer Will be Made Pursuant to Any Other
Exemption From the Registration Requirements of the Securities
Act, Then the Transferor Must Deliver a Certificate in the Form
of Exhibit B Hereto, Including the Certifications, Certificates
and Opinion of Counsel Required by Item (3) Thereof, If
Applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note May be Exchanged by the Holder
Thereof for an Unrestricted Definitive Note or Transferred to a Person
or Persons Who Take Delivery Thereof in the Form of an Unrestricted
Definitive Note If:
(A) Such Exchange or Transfer is Effected Pursuant to an
Exchange Offer in Accordance With the Applicable Registration
Rights Agreement and the Holder, in the Case of an Exchange, or
the Transferee, in the Case of a Transfer, Makes the
Certifications in the Applicable Letter of Transmittal Required
by Such Registration Rights Agreement;
(B) Any Such Transfer is Effected Pursuant to an Effective
Shelf Registration Statement in Accordance With the Applicable
Registration Rights Agreement;
(C) Any Such Transfer is Effected by a Broker-dealer
Pursuant to an Effective Exchange Offer Registration Statement in
Accordance With the Applicable Registration Rights Agreement and
the Transferee Makes the Certifications in the Applicable Letter
of Transmittal Required by Such Registration Rights Agreement; or
(D) the Registrar Receives the Following:
(1) If the Holder of Such Restricted Definitive Notes
Proposes to Exchange Such Notes for an Unrestricted Definitive
Note, a Certificate From Such Holder in the Form of Exhibit C
Hereto, Including the Certifications in Item (1)(D) Thereof; or
(2) If the Holder of Such Restricted Definitive Notes
Proposes to Transfer Such Notes to a Person Who Shall Take
Delivery Thereof in the Form of an Unrestricted Definitive Note,
a Certificate From Such Holder in the Form of Exhibit B Hereto,
Including the Certifications in Item (4) Thereof;
And, in Each Such Case Set Forth in This Clause (D), If the
Registrar So Requests, an Opinion of Counsel in Form Reasonably
Acceptable to the Registrar and the Company to the Effect That
Such Exchange or Transfer is in Compliance With the Securities
Act and That the Restrictions On Transfer Contained Herein and in
the Private Placement Legend are No Longer Required in Order to
Maintain Compliance With the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. a Holder of Unrestricted Definitive Notes May Transfer Such
Notes to a Person Who Takes Delivery Thereof in the Form of an
Unrestricted Definitive Note. Upon Receipt of a Request to Register
Such a Transfer, the Registrar Shall Register the Unrestricted
Definitive Notes Pursuant to the Instructions From the Holder Thereof.
34
(iv) Exchange Offer. Upon the Occurrence of an Exchange Offer in
Accordance With an Applicable Registration Rights Agreement, the
Company Shall Issue And, Upon Receipt of an Authentication Order in
Accordance With Section 2.02, the Trustee Shall Authenticate (A) One
or More Exchange Notes That are Unrestricted Global Notes in an
Aggregate Principal Amount Equal to the Principal Amount of the
Beneficial Interests in the Restricted Global Notes Tendered for
Acceptance by Persons That Make the Certifications in the Applicable
Letters of Transmittal Required by Such Registration Rights Agreement,
and Accepted for Exchange in the Exchange Offer and (B) Exchange Notes
That are Unrestricted Definitive Notes in an Aggregate Principal
Amount Equal to the Principal Amount of the Restricted Definitive
Notes Tendered for Acceptance by Persons Who Made the Foregoing
Certification and Accepted for Exchange in Such Exchange Offer.
Concurrently With the Issuance of Such Exchange Notes, the Trustee
Shall Cause the Aggregate Principal Amount of the Applicable
Restricted Global Notes to be Reduced Accordingly, and the Company
Shall Execute and the Trustee Shall Authenticate and Mail or Deliver
to the Persons Designated by the Holders of Restricted Definitive
Notes So Accepted Unrestricted Definitive Notes in the Appropriate
Principal Amount.
(F) Legends. the Following Legends Shall Appear On the Face of All
Global Notes and Definitive Notes Issued Under This Indenture Unless
Specifically Stated Otherwise in the Applicable Provisions of This Indenture.
(i) Private Placement Legend.
(A) Except as Permitted by Clause (B) Below, Each Global
Note and Each Definitive Note (And All Notes Issued in Exchange
Therefor or Substitution Thereof) Shall Bear the Legend in
Substantially the Following Form:
"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, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.
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 (OR SUCH SHORTER PERIOD AS MAY
BE PRESCRIBED BY RULE 144(K) (OR ANY SUCCESSOR PROVISION THEREOF UNDER THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY
PREDECESSOR OF THIS SECURITY) 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 OR ITS SUBSIDIARIES, (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 TO NON-U.S. PERSONS THAT OCCUR OUTSIDE OF THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO RULE 904 OF REGULATION S, (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 AND THE
35
SECURITIES LAWS OF ANY OTHER JURISDICTION, INCLUDING OF ANY STATE OF THE UNITED
STATES OR ANY PROVINCE OF CANADA, 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.
(B) Notwithstanding the Foregoing, All of the Initial Notes,
and Any Global Note or Definitive Note Representing Notes Issued
Pursuant to Clauses (B)(iv), (C)(ii), (C)(iii), (D)(ii),
(D)(iii), (E)(ii), (E)(iii) or (E)(iv) of This Section 2.06 (And
All Notes Issued in Exchange Therefor or Substitution Thereof)
Shall Not Bear the Private Placement Legend;
(ii) Global Note Legend. Each Global Note Shall Bear a Legend in
Substantially the Following Form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(g) Cancellation And/or Adjustment of Global Notes. At Such Time as
All Beneficial Interests in a Particular Global Note Have Been Exchanged for
Definitive Notes or a Particular Global Note has Been Redeemed, Repurchased or
Cancelled in Whole and Not in Part, Each Such Global Note Shall be Returned to
or Retained and Cancelled by the Trustee in Accordance With Section 2.11 Hereof.
At Any Time Prior to Such Cancellation, If Any Beneficial Interest in a Global
Note is Exchanged for or Transferred to a Person Who Will Take Delivery Thereof
in the Form of a Beneficial Interest in Another Global Note or for Definitive
Notes, the Principal Amount of Notes Represented by Such Global Note Shall be
Reduced Accordingly and an Endorsement Shall be Made On Such Global Note by the
Trustee or by the Depositary At the Direction of the Trustee to Reflect Such
Reduction; and If the Beneficial Interest is Being Exchanged for or Transferred
to a Person Who Will Take Delivery Thereof in the Form of a Beneficial Interest
in Another Global Note, Such Other Global Note Shall be Increased Accordingly
and an Endorsement Shall be Made On Such Global Note by the Trustee or by the
Depositary At the Direction of the Trustee to Reflect Such Increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) to Permit Registrations of Transfers and Exchanges, the Company
Shall Execute And, Upon Receipt of an Authentication Order in Accordance
With Section 2.02, the Trustee Shall Authenticate Global Notes and
Definitive Notes Upon the Company's Order or At the Registrar's Request.
36
(ii) No Service Charge Shall be Made to a Holder of a Beneficial
Interest in a Global Note or to a Holder of a Definitive Note for Any
Registration of Transfer or Exchange, But the Company May Require Payment
of a Sum Sufficient to Cover Any Transfer Tax or Similar Governmental
Charge Payable in Connection Therewith (Other Than Any Such Transfer Taxes
or Similar Governmental Charge Payable Upon Exchange or Transfer Pursuant
to Sections 2.07, 3.06, 4.12, 4.17 and 9.05 Hereof).
(iii) All Global Notes and Definitive Notes Issued Upon Any
Registration of Transfer or Exchange of Global Notes or Definitive Notes
Shall be the Valid Obligations of the Company, Evidencing the Same Debt,
and Entitled to the Same Benefits Under This Indenture, as the Global Notes
or Definitive Notes Surrendered Upon Such Registration of Transfer or
Exchange.
(iv) Neither the Registrar Nor the Company Shall be Required (A) to
Issue, to Register the Transfer of or to Exchange Any Notes During a Period
Beginning At the Opening of Business 15 Days Before the Day of Any
Selection of Notes for Redemption Under Section 3.02 Hereof and Ending At
the Close of Business On the Day of Selection, (B) to Register the Transfer
of or to Exchange Any Note So Selected for Redemption in Whole or in Part,
Except the Unredeemed Portion of Any Note Being Redeemed in Part or (C) to
Register the Transfer of or to Exchange a Note Between a Record Date and
the Next Succeeding Interest Payment Date.
(v) Prior to Due Presentment for the Registration of a Transfer of Any
Note, the Trustee, Any Agent and the Company May Deem and Treat the Person
in Whose Name Any Note is Registered as the Absolute Owner of Such Note for
the Purpose of Receiving Payment of Principal of and Interest On Such Notes
and for All Other Purposes, and None of the Trustee, Any Agent or the
Company Shall be Affected by Notice to the Contrary.
(vi) the Trustee Shall Authenticate Global Notes and Definitive Notes
in Accordance With the Provisions of Section 2.02 Hereof.
(vii) All Certifications, Certificates and Opinions of Counsel
Required to be Submitted to the Registrar Pursuant to This Section 2.06 to
Effect a Registration of Transfer or Exchange May be Submitted by
Facsimile.
(viii) the Trustee is Hereby Authorized to Enter Into a Letter of
Representation With the Depositary in the Form Provided by the Company and
to Act in Accordance With Such Letter.
(ix) the Trustee Shall Have No Obligation or Duty to Monitor,
Determine or Inquire as to Compliance With Any Restrictions On Transfer
Imposed Under This Indenture or Under Applicable Law With Respect to Any
Transfer of Any Interest in Any Note (Including Any Transfers Between or
Among Participants or Beneficial Owners of Interests in Any Global Note)
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.
Section 2.07. Temporary Notes.
----------------
Pending the preparation of Definitive Notes, the Company may execute,
and upon receipt of a Company Order the Trustee shall authenticate and deliver,
temporary Definitive Notes which shall be substantially in the form of
Definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the temporary Notes at any office or agency of the Company
designated pursuant to Section 4.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of authorized denominations. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
37
Section 2.08. Mutilated, Destroyed, Lost or Stolen Notes.
------------------------------------------
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a certificate
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.09. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
On or before any Interest Payment Date, the Company shall 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 as provided in Section 4.01) an amount
of money sufficient to pay the interest on all the Notes that is to be paid on
such Interest Payment Date. Interest on any Note which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Note is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "DEFAULTED
INTEREST") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest shall be paid by the Company to the Persons in whose names the Notes
(or their respective predecessor Notes) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Note and
the date of the proposed payment (which date shall be a date which will enable
the Trustee to comply with the provisions of the immediately following
sentence), and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided herein. The Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
38
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Note Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective predecessor Notes) are registered at the close of business on such
Special Record Date. Subject to the foregoing provisions of this Section, each
Note delivered under this Indenture upon registration of transfer of, or in
exchange for or in lieu of, any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.10. Persons Deemed Owners.
----------------------
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of and (subject to Section 2.09)
interest on such Note and for all other purposes whatever, whether or not such
Note be overdue, and neither the Company nor the Trustee shall be affected by
notice to the contrary.
Section 2.11. Cancellation.
-------------
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Notes held by the Trustee shall be disposed of by the
Trustee in accordance with its customary procedures.
Section 2.12. CUSIP or ISIN Numbers.
----------------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures ("CUSIP"), the Company may cause CUSIP
numbers to be printed on the Notes and may direct the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders of Notes. No
representation is made as to the accuracy of the CUSIP numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.13. Outstanding Notes.
------------------
(a) the Notes Outstanding At Any Time are All the Notes Authenticated
by the Trustee Except for Those Cancelled by It, Those Delivered to It for
Cancellation, Those Reductions in the Interest in a Global Note Effected by the
Trustee in Accordance With the Provisions Hereof, and Those Described in This
Section 2.13 as Not Outstanding. Except as Set Forth in Section 2.14 Hereof, a
Note Does Not Cease to be Outstanding Because the Company or an Affiliate of the
Company Holds the Note; However, Notes Held by the Company or a Subsidiary of
the Company Shall Not be Deemed to be Outstanding for Purposes of Section
3.07(D) Hereof.
(b) If a Note is Replaced Pursuant to Section 2.07 Hereof, It Ceases
to be Outstanding Unless the Trustee Receives Proof Satisfactory to It That the
Replaced Note is Held by a Bona Fide Purchaser.
(c) If the Principal Amount of Any Note is Considered Paid Under
Section 4.01 Hereof, It Ceases to be Outstanding and Interest On It Ceases to
Accrue.
(d) If the Paying Agent (Other Than the Company, a Subsidiary or an
Affiliate of Any Thereof) Holds, On a Redemption Date or Maturity Date, Money
Sufficient to Pay Notes Payable On That Date, Then On and After That Date Such
Notes Shall be Deemed to be No Longer Outstanding and Shall Cease to Accrue
Interest.
39
Section 2.14. Treasury Notes.
---------------
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, amendment,
supplement,
waiver or consent, Notes owned by the Company or by any Affiliate of the Company
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, amendment, supplement, waiver or consent, only Notes that the Trustee
knows are so owned shall be so disregarded.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
-------------------------
Section 3.01. Notices to Trustee.
-------------------
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof and paragraph 5 of the Notes, it
shall furnish to the Trustee, at least 30 days but not more than 60 days before
a redemption date unless a shorter notice shall be satisfactory to the Trustee,
an Officers' Certificate setting forth (i) the clause of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption price. Any such
notice may be cancelled at any time prior to notice of such redemption being
mailed to any Holder and shall, therefore, be void and of no effect.
Section 3.02. Selection of Notes to Be Redeemed.
----------------------------------
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes in
compliance with any applicable depositary and legal requirements and the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, at
random or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption at random, the particular Notes
to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the redemption date by the Trustee from
the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
---------------------
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price or If the Redemption is Made Pursuant to
Section 3.07(C) a Calculation of the Redemption Price;
(c) If Any Note is Being Redeemed in Part, the Portion of the
Principal Amount of Such Note to be Redeemed and That, After the Redemption Date
Upon Surrender of Such Note, a New Note or Notes in Principal Amount Equal to
the Unredeemed Portion Shall be Issued Upon Cancellation of the Original Note;
40
(d) the Name and Address of the Paying Agent;
(e) That Notes Called for Redemption Must be Surrendered to the
Paying Agent to Collect the Redemption Price;
(f) That, Unless the Company Defaults in Making Such Redemption
Payment, Interest On Notes Called for Redemption Ceases to Accrue On and After
the Redemption Date;
(g) the Paragraph of the Notes or Section of This Indenture Pursuant
to Which the Notes Called for Redemption are Being Redeemed; and
(h) 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 Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days, or such shorter
period allowed by the Trustee, prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in this Section 3.03.
Section 3.04. Effect of Notice of Redemption.
-------------------------------
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price subject to satisfaction of any
conditions specified in such notice.
Section 3.05. Deposit of Redemption Price.
----------------------------
On or before 11:00 a.m. Eastern time on any redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Notes (or portions of
Notes) to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption, whether or not such
Notes are presented for payment. If a Note is redeemed on or after a Regular
Record Date but on or prior to the related Interest Payment Date, then any
accrued and unpaid interest shall be paid to the Person in whose name such Note
was registered at the close of business on such Regular Record Date. If any Note
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
Section 3.06. Notes Redeemed in Part.
-----------------------
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
--------------------
(a) From the Issue Date Through [ ], 2004,(6) the Company May Redeem
All or Any Portion of the Notes, At Once or Over Time, At a Redemption Price
(Expressed as a Percentage of Principal Amount) Equal to 100.0% of the Principal
Amount of the Notes to be Redeemed, Plus Accrued and Unpaid Interest 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).
- -----------------------
(6) 180 days after the Issue Date.
41
(b) At Any Time and From Time to Time During the Twelve-month Period
Commencing On [ ] of the Years Indicated Below, the Company May Redeem All or
Any Portion of the Notes At the Redemption Prices (Expressed as Percentages of
Principal Amount) Set Forth Below, Plus Accrued and Unpaid Interest On the Notes
Redeemed, to the Applicable 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):
Year Percentage
---- ----------
2007..............................................[ ]%(7)
2008..............................................[ ]%
2009 and thereafter...............................[100.0]%
(c) At Any Time and From Time to Time Prior to [ ], 20___,(8) the
Company May Redeem Up to 35.0% of the Aggregate Principal Amount of the Notes
Issued Under This Indenture At a Redemption Price (Expressed as a Percentage of
Principal Amount) Equal to [ ]%(9) of the Principal Amount Thereof, Plus Accrued
and Unpaid Interest 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) With the Net Cash Proceeds of One or More Equity
Offerings by the Company or the Direct or Indirect Parent of the Company (To the
Extent, in the Case of the Direct or Indirect Parent, That the Net Cash Proceeds
of the Equity Offerings are Contributed to the Common or Non-redeemable
Preferred Equity Capital That is Not Convertible or Exchangeable for Debt or
Disqualified Stock of the Company); Provided, However, That After Giving Effect
to Any Such Redemption, At Least 65.0% of the Aggregate Principal Amount of the
Notes Initially Issued Under This Indenture (Excluding Notes Held by the Company
and Its Subsidiaries) Remains Outstanding Immediately After Giving Effect to
Such Redemption. Any Such Redemption Shall be Made Within 75 Days of Such Equity
Offering Upon Not Less Than 30 Nor More Than 60 Days' Prior Notice.
(d) Any Prepayment Pursuant to This Section 3.07 Shall be Made
Pursuant to the Provisions of Sections 3.01 Through 3.06 Hereof.
Section 3.08. Mandatory Redemption.
---------------------
Except as set forth in Sections 4.12 and 4.17 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
Section 3.09. Offer To Purchase.
------------------
(a) in the Event That, Pursuant to Section 4.12 or 4.17 Hereof, the
Company Shall be Required to Commence a Prepayment Offer or a Change of Control
Offer (Each, an "Offer to Purchase"), It Shall Follow the Procedures Specified
Below.
(b) the Company Shall Cause a Notice of the Offer to Purchase to be
Sent At Least Once to the Dow Jones News Service or Similar Business News
Service in the United States.
(c) the Company Shall Commence the Offer to Purchase by Sending, by
First Class Mail, a Notice to the Trustee and Each of the Holders, With a Copy
to the Trustee. the Notice Shall Contain All Instructions and Materials
Necessary to Enable Such Holders to Tender Notes Pursuant to the Offer to
Purchase. the Notice, Which Shall Govern the Terms of the Offer to Purchase,
Shall State:
- --------------------------------
(7) The initial redemption price under Section 3.07(b) will be par plus 50.0% of
the coupon.
(8) The third anniversary of the Issue Date.
(9) Par plus coupon.
42
(i) That the Offer to Purchase is Being Made Pursuant to This Section
3.09 and Section 4.12 or Section 4.17, as the Case May Be, And, in the Case
of a Change of Control Offer, That a Change of Control has Occurred, the
Circumstances and Relevant Facts Regarding the Change of Control and That a
Change of Control Offer is Being Made Pursuant to Section 4.17;
(ii) the Principal Amount of Notes Required to be Purchased Pursuant
to Section 4.12 or Section 4.17, as the Case May be (The "Offer Amount"),
the Purchase Price Set Forth in Section 4.12 or Section 4.17 Hereof, as
Applicable (Including a Breakdown of the Portion of Such Purchase Price
Attributable to Principal and Interest) (The "Purchase Price"), the Offer
Period and the Purchase Date (Each as Defined Below);
(iii) Except as Provided in Clause (Ix), That All Notes Timely
Tendered and Not Withdrawn Shall be Accepted for Payment;
(iv) That Any Note Not Tendered or Accepted for Payment Shall Continue
to Accrue Interest;
(v) That, Unless the Company Defaults in Making Such Payment, Any Note
Accepted for Payment Pursuant to the Offer to Purchase Shall Cease to
Accrue Interest After the Purchase Date;
(vi) That Holders Electing to Have a Note Purchased Pursuant to an
Offer to Purchase May Elect to Have Notes Purchased in Integral Multiples
of $1,000 Only;
(vii) That Holders Electing to Have a Note Purchased Pursuant to Any
Offer to Purchase Shall be Required to Surrender the Note, With the Form
Entitled "Option of Holder to Elect Purchase" On the Reverse of the Note
Completed, or Transfer by Book-entry Transfer, to the Company, a
Depositary, If Appointed by the Company, or a Paying Agent At the Address
Specified in the Notice At Least Three Days Before the Purchase Date;
(viii) That Holders Shall be Entitled to Withdraw Their Election If
the Company, the Depositary or the Paying Agent, as the Case May Be,
Receives, Not Later Than the Expiration of the Offer Period, a Telegram,
Facsimile Transmission or Letter Setting Forth the Name of the Holder, the
Principal Amount of the Note the Holder Delivered for Purchase and a
Statement That Such Holder is Withdrawing His Election to Have Such Note
Purchased;
(ix) That, in the Case of a Prepayment Offer, If the Aggregate
Principal Amount of Notes Surrendered by Holders Exceeds the Offer Amount,
the Company Shall Select the Notes to be Purchased On a Pro Rata Basis
(With Such Adjustments as May be Deemed Appropriate by the Company So That
Only Notes in Denominations of $1,000 or Integral Multiples Thereof Shall
be Purchased);
(x) That Holders Whose Notes Were Purchased Only in Part Shall be
Issued New Notes Equal in Principal Amount to the Unpurchased Portion of
the Notes Surrendered (Or Transferred by Book-entry Transfer); and
(xi) Any Other Procedures the Holders Must Follow in Order to Tender
Their Notes (Or Portions Thereof) for Payment and the Procedures That
Holders Must Follow in Order to Withdraw an Election to Tender Notes (Or
Portions Thereof) for Payment.
(d) the Offer to Purchase Shall Remain Open for a Period of 20
Business Days Following Its Commencement and No Longer, Except to the Extent
That a Longer Period is Required by Applicable Law (The "Offer Period"). No
Later Than Five Business Days (And in Any Event No Later Than the 60Th Day
Following the Change of Control) After the Termination of the Offer Period (The
"Purchase Date"), the Company Shall Purchase the Principal Amount of Notes
Required to be Purchased Pursuant to Section 4.12 or Section 4.17 Hereof (The
"Offer Amount") Or, If Less Than the Offer Amount has Been Tendered, All Notes
Tendered in Response to the Offer to Purchase. Payment for Any Notes So
Purchased Shall be Made in the Same Manner as Interest Payments are Made.
43
(e) On or Prior to the Purchase Date, the Company Shall, to the
Extent Lawful:
(i) Accept for Payment (On a Pro Rata Basis to the Extent Necessary in
Connection With a Prepayment Offer), the Offer Amount of Notes or Portions
of Notes Properly Tendered and Not Withdrawn Pursuant to the Offer to
Purchase, or If Less Than the Offer Amount has Been Tendered, All Notes
Tendered;
(ii) Deposit With the Paying Agent Funds in an Amount Equal to the
Purchase Price in Respect of All Notes or Portions of Notes Properly
Tendered; and
(iii) Deliver or Cause to be Delivered to the Trustee the Notes
Properly Accepted Together With an Officers' Certificate Stating the
Aggregate Principal Amount of Notes or Portions of Notes Being Purchased by
the Company and That Such Notes or Portions Thereof Were Accepted for
Payment by the Company in Accordance With the Terms of This Section 3.09.
(f) the Paying Agent Shall Promptly (But in the Case of a Change of
Control Not Later Than 60 Days From the Date of the Change of Control) Execute
and Issue a New Note, And, Upon Receipt of an Authentication Order in Accordance
With Section 2.02 Hereof, the Trustee Shall Authenticate and Deliver (Or Cause
to be Transferred by Book-entry) Such New Note to Such Holder, in a Principal
Amount Equal to Any Unpurchased Portion of the Note Surrendered; Provided,
However, That Each Such New Note Shall be in a Principal Amount of $1,000 or an
Integral Multiple Thereof. Any Note Not So Accepted Shall be Promptly Mailed or
Delivered by the Company to the Holder Thereof.
(g) If the Purchase Date is On or After a Regular Record Date and On
or Before the Related Interest Payment Date, Any Accrued and Unpaid Interest
Shall be Paid to the Person in Whose Name a Note is Registered At the Close of
Business On Such Regular Record Date, and No Additional Interest Shall be
Payable to Holders Who Tender Notes Pursuant to the Offer to Purchase.
(h) the Company Shall Comply, to the Extent Applicable, With the
Requirements of Rule 14E-1 Under the Exchange Act and Any Other Securities Laws
and Regulations Thereunder to the Extent Those Laws and Regulations are
Applicable in Connection With the Offer to Purchase. to the Extent That the
Provisions of Any Securities Laws or Regulations Conflict With Sections 4.12 or
4.17, as Applicable, This Section 3.09 or Other Provisions of This Indenture,
the Company Shall Comply With Applicable Securities Laws and Regulations and
Shall Not be Deemed to Have Breached Its Obligations Under Sections 4.12 or
4.17, as Applicable, This Section 3.09 or Such Other Provision by Virtue of Such
Compliance.
(i) Other Than as Specifically Provided in This Section 3.09, Any
Purchase Pursuant to This Section 3.09 Shall be Made in Accordance With the
Provisions of Section 3.01 Through 3.06 Hereof.
ARTICLE 4.
COVENANTS
---------
Section 4.01. Payment of Notes; Money for Note Payments to be Held in Trust.
-------------------------------------------------------------
(a) The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on, the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is [1.0]% per annum in excess of
44
the rate then in effect; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods), from time to time on demand at
the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
(b) If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of, or interest on any of the
Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of, or interest on any of the Notes,
deposit with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) Hold All Sums Held by It for the Payment of the Principal of
or Interest On Notes in Trust for the Benefit of the Persons Entitled
Thereto Until Such Sums Shall be Paid to Such Persons or Otherwise
Disposed of as Herein Provided;
(2) Give the Trustee Notice of Any Default by the Company (Or Any
Other Obligor Upon the Notes) in the Making of Any Payment of
Principal or Interest; and
(3) At Any Time During the Continuance of Any Such Default, Upon
the Written Request of the Trustee, Forthwith Pay to the Trustee All
Sums So Held in Trust by Such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or interest on
any Note and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
45
Section 4.02. Maintenance of Office or Agency.
--------------------------------
(a) the Company Shall Maintain an Office or Agency (Which May be an
Office or Drop Facility of the Trustee or an Affiliate of the Trustee, Registrar
or Co-registrar) Where Notes May be Presented or Surrendered for Registration of
Transfer or for Exchange and Where Notices and Demands to or Upon the Company in
Respect of the Notes and This Indenture May be Served. the Company Shall Give
Prompt Written Notice to the Trustee of the Location, and Any Change in the
Location, of Such Office or Agency. If At Any Time the Company Shall Fail to
Maintain Any Such Required Office or Agency or Shall Fail to Furnish the Trustee
With the Address Thereof, Such Presentations, Surrenders, Notices and Demands
May be Made or Served At the Corporate Trust Office of the Trustee, and the
Company Hereby Appoints the Trustee as Its Agent to Receive All Such
Presentations, Surrenders, Notices and Demands.
(b) the Company May Also From Time to Time Designate One or More
Other Offices or Agencies Where the Notes May be Presented or Surrendered for
Any or All Such Purposes and May From Time to Time Rescind Such Designations.
the Company Shall Give Prompt Written Notice to the Trustee of Any Such
Designation or Rescission and of Any Change in the Location of Any Such Other
Office or Agency.
(c) the Company Hereby Designates the Corporate Trust Office of the
Trustee, as One Such Office, Drop Facility or Agency of the Company in
Accordance With Section 2.04.
Section 4.03. Reports.
-------
(a) Notwithstanding That the Company May Not be Subject to the
Reporting Requirements of Section 13 or 15(D) of the Exchange Act, So Long as
Any Notes are Outstanding the Company Shall File With the Commission, to the
Extent Such Submissions are Accepted for Filing With the Commission, and Shall
Furnish to the Trustee, Within 15 Days After It is or Would Have Been Required
to be Filed With the Commission:
(i) All Quarterly and Annual Financial Information That Would be
Required to be Contained in a Filing With the Commission On Forms 10-Q and
10-K If the Company Were Required to File Such Forms, Including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" And, With Respect to the Annual Information Only, a Report On
the Annual Financial Statements by the Company's Certified Independent
Accountants; and
(ii) All Information That Would be Required to be Filed With the
Commission On Form 8-K If the Company Were Required to File Such Reports.
(b) Delivery of Such Reports, Information and Documents to the
Trustee is for Informational Purposes Only, and the Trustee's Receipt of Such
Shall Not Constitute Constructive Notice of Any Information Contained Therein or
Determinable From Information Contained Therein, Including the Company's
Compliance With Any of Its Covenants Hereunder (As to Which the Trustee is
Entitled to Rely Exclusively On Officers' Certificates).
Section 4.04. Compliance Certificate.
-----------------------
(a) the Company Shall Deliver to the Trustee, Within 90 Days After
the End of Each Fiscal Year, an Officers' Certificate Stating That a Review of
the Activities of the Company, the Subsidiary Guarantors and Their Respective
Subsidiaries During the Preceding Fiscal Year has Been Made Under the
Supervision of the Signing Officers With a View to Determining Whether the
Company, the Subsidiary Guarantors and Their Respective Subsidiaries Have Kept,
Observed, Performed and Fulfilled Their Obligations Under This Indenture, and
Further Stating, as to Each Such Officer Signing Such Certificate, That to the
Best of His or Her Knowledge the Company and Its Subsidiaries Have Kept,
Observed, Performed and Fulfilled Each and Every Covenant Contained in This
Indenture and is Not in Default in the Performance or Observance of Any of the
Terms, Provisions and Conditions of This Indenture (Or, If a Default or Event of
Default Shall Have Occurred, Describing All Such Defaults or Events of Default
of Which He or She May Have Knowledge and What Action the Company is Taking or
Proposes to Take With Respect Thereto) and That to the Best of His or Her
Knowledge No Event has Occurred and Remains in Existence by Reason of Which
Payments On Account of the Principal of or Interest On the Notes is Prohibited
or If Such Event has Occurred, a Description of the Event and What Action the
Company is Taking or Proposes to Take With Respect Thereto.
46
(b) the Company Shall Comply With Tia Ss.314(a)(2).
(c) the Company Shall Deliver to the Trustee, Within 20 Business Days
After Becoming Aware of the Occurrence Thereof, Written Notice in the Form of an
Officers' Certificate of Any Default or Event of Default, Its Status and What
Action the Company is Taking or Proposes to Take With Respect Thereto.
Section 4.05. Taxes.
-----
The Company shall pay or discharge, and shall cause each of its
Restricted Subsidiaries to pay or discharge, prior to delinquency, all material
taxes, assessments, and governmental levies; provided that neither the Company
nor any such Restricted Subsidiary shall be required to pay or discharge, or
cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established in
accordance with GAAP.
Section 4.06. Stay, Extension and Usury Laws.
-------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Corporate Existence.
--------------------
Subject to Article 5 hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect
(i) its corporate existence, and the corporate, partnership or other existence
of each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.08. Payments for Consent.
---------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to or for the
benefit of 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 Notes
unless such consideration is offered to be paid or is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement, which time frame shall
in no event be less than ten Business Days following public announcement and
mailing of notice thereof to the Holders.
Section 4.09. Incurrence of Additional Debt
-----------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, Incur, directly or indirectly, any Debt unless, after giving effect to the
application of the proceeds thereof, no Event of Default would occur as a
consequence of such Incurrence or be continuing following such Incurrence and
either:
(a) Such Debt is Debt of the Company or a Restricted Subsidiary and
After Giving Effect to the Incurrence of Such Debt and the Application of the
Proceeds Thereof, the Consolidated Interest Coverage Ratio Would be Greater Than
2.00 to 1.00, or
47
(b) Such Debt is Permitted Debt.
Accrual of interest, accrual of dividends, the accretion of accreted
value, the payment of interest in the form of additional Debt and the payment of
dividends in the form of additional shares of Preferred Stock will not be deemed
to be an incurrence of Debt for purposes of this Section 4.09. The amount of any
Debt outstanding as of any date shall be (i) the accreted value of the Debt in
the case of any Debt issued with original issue discount and (ii) the principal
amount or liquidation preference thereof, together with any interest thereon
that is more than 30 days past due, in the case of any other Debt.
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the incurrence of Debt, the U.S.
dollar-equivalent principal amount of Debt denominated in a foreign currency
shall be calculated based on the relevant currency exchange rate in effect on
the date such Debt was incurred, in the case of term Debt, or first committed,
in the case of revolving credit Debt; provided, that if such Debt is incurred to
refinance other Debt denominated in a foreign currency, and such refinancing
would cause the applicable U.S. dollar-denominated restriction to be exceeded if
calculated at the relevant currency exchange rate in effect on the date of such
refinancing, such U.S. dollar-denominated restriction shall be deemed not to
have been exceeded so long as the principal amount of such refinancing Debt does
not exceed the principal amount of such Debt being refinanced. Notwithstanding
any other provision of this Section 4.09, the maximum amount of Debt that the
Company may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in the exchange rate of currencies.
The principal amount of any Debt incurred to refinance other Debt, if incurred
in a different currency from the Debt being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
Debt is denominated that is in effect on the date of such refinancing.
For purposes of determining compliance with this covenant in the
event that an item of Debt meets the criteria of more than one of the categories
of Permitted Debt described in clauses (a) through (o) of the definition of
Permitted Debt or is entitled to be incurred pursuant to clause (a) of the first
paragraph of this covenant, the Company shall, in its sole discretion, classify
(or later reclassify in whole or in part, in its sole discretion) such item of
Debt in any manner that complies with this covenant.
Section 4.10. Restricted Payments.
--------------------
The Company shall not make, and shall not permit any Restricted
Subsidiary to make, directly or indirectly, any Restricted Payment if at the
time of, and after giving effect to, such proposed Restricted Payment,
(a) an Event of Default Shall Have Occurred and be Continuing,
(b) the Company Could Not Incur At Least $1.00 of Additional Debt
Pursuant to Clause (A) of Section 4.09 Hereof; or
(c) the Aggregate Amount of Such Restricted Payment and All Other
Restricted Payments Declared or Made Since the Issue Date (The Amount of Any
Restricted Payment, If Made Other Than in Cash, to be Based Upon Fair Market
Value as Determined in Good Faith by the Company) Would Exceed an Amount Equal
to the Sum Of:
(1) 50.0% of the Aggregate Amount of Consolidated Net Income
Accrued During the Period (Treated as One Accounting Period) From the
Beginning of the First Fiscal Quarter After the Fiscal Quarter in
Which the Effective Date Occurs to the End of the Most Recent Fiscal
Quarter Ending for Which Financial Statements are Available (Or If the
Aggregate Amount of Consolidated Net Income for Such Period Shall be a
Deficit, Minus 100.0% of Such Deficit), Plus
(2) Capital Stock Sale Proceeds, Plus
(3) the Sum Of:
48
(A) the aggregate net cash proceeds received by the Company
or any Restricted Subsidiary from the issuance or sale after the
Issue Date of convertible or exchangeable Debt that has been
converted into or exchanged for Capital Stock (other than
Disqualified Stock) of the Company, and
(B) the aggregate amount by which Debt of the Company or any
Restricted Subsidiary is reduced on the Company's consolidated
balance sheet on or after the Issue Date upon the conversion or
exchange of any Debt issued or sold on or prior to the Issue Date
that is convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of the Company,
excluding, in the case of clause (A) or (B):
(x) any such Debt issued or sold to the Company or a
Subsidiary of the Company, and
(y) the aggregate amount of any cash or other Property
distributed by the Company or any Restricted Subsidiary upon any
such conversion or exchange,
plus
(4) in the Case of the Disposition or Repayment of Any Investment
Constituting a Restricted Payment Made After the Issue Date, an Amount
of the Net Available Cash Received Therefrom by the Company or a
Restricted Subsidiary Equal to the Lesser of the Return of Capital
With Respect to Such Investment and the Cost of Such Investment, in
Either Case, Less the Cost of the Disposition of Such Investment; Plus
(5) an Amount Equal to the Sum Of:
(A) the net reduction in Investments in any Person other
than the Company or a Restricted Subsidiary resulting from
dividends, repayments of loans or advances or other transfers of
Property, in each case to the Company or any Restricted
Subsidiary from such Person, and
(B) the portion (proportionate to the Company's equity
interest in such Unrestricted Subsidiary) of the fair market
value of the net assets of an Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted
Subsidiary as determined in good faith by the Company; provided,
however, that the foregoing sum shall not exceed, in the case of
any Person, the amount of Investments previously made (and
treated as a Restricted Payment) by the Company or any Restricted
Subsidiary in such Person.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph will not prohibit:
(a) the Company and Any Restricted Subsidiary May Pay Dividends On
Its Capital Stock Within 60 Days of the Declaration Thereof If, On Said
Declaration Date, Such Dividends Could Have Been Paid in Compliance With the
Indenture; Provided, However, That Such Dividend Shall be Included in the
Calculation of the Amount of Restricted Payments;
(b) the Incurrence, Renewal, Extension or Refinancing of Permitted
Refinancing Debt;
(c) the Exchange or Conversion of Any Debt of the Company or Any of
Its Restricted Subsidiaries for or Into Qualified Capital Stock of the Company;
49
(d) So Long as No Event of Default Shall Have Occurred and be
Continuing, Payments of Ordinary Dividends On the Company's Common Stock in an
Aggregate Amount Per Year Not to Exceed $25.0 Million;
(e) the Purchase, Repurchase, Redemption, Legal Defeasance,
Acquisition or Retirement for Value Capital Stock of the Company or Subordinated
Obligations of the Company or Any Restricted Subsidiary in Exchange For, or Out
of the Proceeds of the Substantially Concurrent Sale Of, Capital Stock of the
Company (Other Than Disqualified Stock and Other Than Capital Stock Issued or
Sold to a Subsidiary of the Company); Provided, However, That
(1) Such Purchase, Repurchase, Redemption, Legal Defeasance,
Acquisition or Retirement Shall be Excluded in the Calculation of the
Amount of Restricted Payments; and
(2) the Capital Stock Sale Proceeds From Such Exchange or Sale
Shall be Excluded From the Calculation Pursuant to Clause (C)(2) of
the Preceding Paragraph of This Section 4.10;
(f) Scheduled Dividends (Not Constituting a Return On Capital) On
Preferred Stock of a Restricted Subsidiary or On Disqualified Stock of the
Company Issued Pursuant to and in Compliance With Section 4.09 Hereof;
(g) the Redemption, Repurchase, Retirement or Other Acquisition of
Any Capital Stock or Subordinated Obligation of the Company or a Restricted
Subsidiary in Exchange for or Out of the Net Cash Proceeds of the Substantially
Concurrent Sale (Other Than to a Subsidiary of the Company) of Debt That is
Subordinated to the Same Extent in Right of Payment to the Notes; Provided That
the Proceeds of Such Sale of Such Indebtedness Shall Not be (And Have Not Been)
Included in Clause (C) of the Preceding Paragraph of This Section 4.10;
(h) Repurchases of Shares Of, or Options to Purchase Shares Of,
Common Stock of the Company or Any of Its Subsidiaries (X) From Current or
Former Officers, Directors or Employees of the Company or Any of Its
Subsidiaries (Or Permitted Transferees of Such Current or Former Officers,
Directors or Employees), Pursuant to the Terms of Agreements (Including
Employment Agreements) or Plans (Or Amendments Thereto) Approved by the Board of
Directors Under Which Such Individuals Purchase or Sell, or are Granted the
Option to Purchase or Sell, Shares of Such Common Stock or (Y) Which are or are
Intended to be Used to Satisfy Issuances of Equity Interests Upon Exercise of
Employee or Director Stock Options or Exercise or Satisfaction of Other Similar
Instruments Outstanding Under Employee or Director Benefit Plans of the Company
or Any Subsidiary of the Company; Provided, However, That:
(1) the Aggregate Amount of Such Repurchases Shall Not Exceed
$1.0 Million in Any Calendar Year; and
(2) No Event of Default Shall Have Occurred and be Continuing At
the Time of Such Repurchase or Immediately Thereafter;
(i) Repurchases of Capital Stock Deemed to Occur Upon the Exercise of
Stock Options or Warrants If Such Capital Stock Represents a Portion of the
Exercise Price Thereof;
(j) So Long as No Event of Default Shall Have Occurred and be
Continuing or Would Otherwise Result Therefrom, Payments of Intercompany Debt,
the Incurrence of Which was Permitted Pursuant to Section 4.09 Hereof;
(k) Payments Made to Purchase, Redeem, Defease or Otherwise Acquire
or Retire for Value Any Capital Stock or Subordinated Obligation of the Company
Pursuant to Provisions Requiring the Company to Offer to Purchase, Redeem,
Defease or Otherwise Acquire or Retire for Value Such Capital Stock or
Subordinated Obligation Upon the Occurrence of a "Change of Control" or With the
Proceeds of "Asset Sales" as Defined in the Charter Provisions, Agreements or
Instruments Governing Such Capital Stock or Subordinated Obligation; Provided,
However, That the Company has Made a Change of Control Offer and has Purchased
All Notes Tendered in Connection With That Change of Control Offer;
50
(l) Payments Required to be Made by the Plan of Reorganization;
(m) Restricted Payments by the Company or Any of Its Restricted
Subsidiaries Not Otherwise Permitted to be Made Under Clauses (A) Through (K)
Above in an Aggregate Amount Not to Exceed $50.0 Million.
Each Restricted Payment described in clauses (a), (j) and (k) of the
previous sentence shall be taken into account (and the Restricted Payments
described in the remaining clauses shall not be taken into account) for purposes
of computing the aggregate amount of all Restricted Payments made pursuant to
clause (c) of the preceding paragraph.
Section 4.11. Liens.
-----
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, Incur or suffer to exist, any Lien (other than
Permitted Liens) upon any of its Property (including Capital Stock of a
Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired,
or any interest therein or any income or profits therefrom, unless it has made
or will make effective provision whereby the Notes will be secured by such Lien
equally and ratably with (or prior to) all other Debt of the Company or any
Restricted Subsidiary secured by such Lien.
Section 4.12. Asset Sales.
-----------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Sale unless:
(a) the Company or Such Restricted Subsidiary Receives Consideration
At the Time of Such Asset Sale At Least Equal to the Fair Market Value of the
Property Subject to Such Asset Sale (As Determined in Good Faith by the
Company); and
(b) At Least 75.0% of the Consideration Paid At Closing to the
Company or Such Restricted Subsidiary in Connection With Such Asset Sale is in
the Form of Cash or Cash Equivalents or the Assumption by the Purchaser of
Liabilities of the Company or Any Restricted Subsidiary (Other Than Liabilities
That are by Their Terms Subordinated to the Notes or Any Subsidiary Guarantee)
as a Result of Which the Company and the Restricted Subsidiaries are No Longer
Obligated With Respect to Such Liabilities and are Fully Released Therefrom, or
Securities Received by the Company or Any Restricted Subsidiary From the
Transferee That are Converted Within 90 Days of Receipt by the Company or Such
Restricted Subsidiary Into Cash, to the Extent of the Cash Received in That
Conversion.
The Net Available Cash (or any portion thereof) from Asset Sales may
be applied by the Company or a Restricted Subsidiary, to the extent the Company
or such Restricted Subsidiary elects (or is required by the terms of any Debt):
(a) to Repay Debt under Credit Facilities or, if issued, the
Floating Rate Notes; or
(b) to reinvest in Additional Assets (including by means of
an Investment in Additional Assets by a Restricted Subsidiary
with Net Available Cash received by the Company or another
Restricted Subsidiary).
Pending the final application of any such Net Available Cash, the
Company or any Restricted Subsidiary may temporarily reduce the revolving credit
debt under its Credit Facilities or otherwise invest such Net Available Cash in
any manner that is not prohibited by the Indenture. Any Net Available Cash from
an Asset Sale not applied in accordance with the preceding paragraph within 360
days from the date of the receipt of such Net Available Cash shall constitute
"Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $25.0 million
(taking into account income earned on such Excess Proceeds, if any), the Company
will be required to make an offer to purchase (the "PREPAYMENT OFFER") the Notes
which offer shall be in the amount of the Allocable Excess Proceeds, on a pro
51
rata basis according to principal amount at maturity, at a purchase price equal
to 100.0% of the principal amount, plus accrued and unpaid interest, if any, to
the purchase date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date), in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 3.09 hereof. To the extent that any
portion of the amount of Net Available Cash remains after compliance with the
preceding sentence and provided that all holders of Notes have been given the
opportunity to tender their Notes for purchase in accordance with the Indenture,
the Company or such Restricted Subsidiary may use such remaining amount for any
purpose permitted by the Indenture and the amount of Excess Proceeds will be
reset to zero.
The term "Allocable Excess Proceeds" will mean the product of:
(a) the Excess Proceeds and
(b) a fraction,
(1) the Numerator of Which is the Aggregate Principal Amount of
the Notes Outstanding On the Date of the Prepayment Offer, and
(2) the Denominator of Which is the Sum of the Aggregate
Principal Amount of the Notes Outstanding On the Date of the
Prepayment Offer and the Aggregate Principal Amount of Other Debt of
the Company Outstanding On the Date of the Prepayment Offer That is
Pari Passu in Right of Payment With the Notes and Subject to Terms and
Conditions in Respect of Asset Sales Similar in All Material Respects
to the Covenant Described Hereunder and Requiring the Company to Make
an Offer to Purchase Such Debt At Substantially the Same Time as the
Prepayment Offer.
Within five business days after the Company is obligated to make a
Prepayment Offer as described in the preceding paragraph, the Company shall send
a written notice, by first-class mail, to the holders of Notes, accompanied by
such information regarding the Company and its Subsidiaries as the Company in
good faith believes will enable such holders to make an informed decision with
respect to such Prepayment Offer. Such notice shall comply with the applicable
requirements of Section 3.09 and shall contain all instructions and materials
necessary to enable such holders to tender the Notes pursuant to the Prepayment
Offer and state, among other things, the purchase price and the purchase date.
The Company will 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 Notes pursuant to this
Section 4.12. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.12, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the covenant described hereunder
by virtue thereof.
Section 4.13. Restrictions on Distributions from Restricted Subsidiaries.
----------------------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist any
consensual restriction on the right of any Restricted Subsidiary to:
(a) Pay Dividends, in Cash or Otherwise, or Make Any Other
Distributions On or in Respect of Its Capital Stock, or Pay Any Debt or Other
Obligation Owed, to the Company or Any Other Restricted Subsidiary,
(b) Make Any Loans or Advances to the Company or Any Other Restricted
Subsidiary or
(c) Transfer Any of Its Property to the Company or Any Other
Restricted Subsidiary.
The foregoing limitations will not apply:
(1) to encumbrances or restrictions existing under or by reason of
applicable law or regulations;
52
(2) with respect to clauses (a), (b) and (c), to restrictions:
(A) in effect on the Issue Date (after giving effect to the
Plan of Reorganization);
(B) relating to Debt Incurred under clause (j) of the
definition of "Permitted Debt;" provided, however, that such
restrictions shall not apply to the Company or any Domestic
Subsidiaries;
(C) relating to Debt of a Restricted Subsidiary and existing
at the time it became a Restricted Subsidiary if such restriction
was not created in connection with or in anticipation of the
transaction or series of transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Company, or
(D) that result from the Refinancing of Debt Incurred
pursuant to an agreement referred to in clause (2)(A), (B) or (C)
above or in clause (3)(A) or (B) below, so long as such
restriction is no less favorable to the holders of Notes than
those under the agreement evidencing the Debt so Refinanced, and
(3) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and
secured without also securing the Notes pursuant to Sections 4.09
and 4.11 hereof that limit the right of the debtor to dispose of
the Property securing such Debt,
(B) encumbering Property at the time such Property was
acquired by the Company or any Restricted Subsidiary, so long as
such restriction relates solely to the Property so acquired and
was not created in connection with or in anticipation of such
acquisition,
(C) resulting from customary provisions restricting
subletting or assignment of leases or customary provisions in
other agreements that restrict assignment of such agreements or
rights thereunder,
(D) any encumbrances or restrictions contained in security
agreements or mortgages securing Debt of a Restricted Subsidiary
to the extent such encumbrance or restriction restricts the
transfer of the property subject to such security agreement or
mortgage,
(E) customary restrictions contained in asset sale
agreements limiting the transfer of such Property pending the
closing of such sale; and
(4) customary restrictions contained in joint venture or similar
agreements relating to Permitted Joint Ventures.
Section 4.14. Affiliate Transactions.
-----------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, conduct any business or enter into or suffer to
exist any transaction or series of transactions (including the purchase, sale,
transfer, assignment, lease, conveyance or exchange of any Property or the
rendering of any service) with, or for the benefit of, any Affiliate of the
Company (an "AFFILIATE TRANSACTION"), unless:
(a) the Terms of Such Affiliate Transaction are No Less Favorable to
the Company or Such Restricted Subsidiary, as the Case May Be, Than Those That
Could be Obtained At the Time in a Comparable Arm's-length Transaction With a
Person That is Not an Affiliate of the Company,
53
(b) If Such Affiliate Transaction Involves Aggregate Payments or
Value in Excess of $5.0 Million, the Board of Directors (Including a Majority of
the Disinterested Members of the Board of Directors) Approves Such Affiliate
Transaction as Evidenced by a Board Resolution Promptly Delivered to the
Trustee, and
(c) If Such Affiliate Transaction Involves Aggregate Payments or
Value in Excess of $15.0 Million, the Company Obtains a Written Opinion From an
Independent Financial Advisor to the Effect That the Consideration to be Paid or
Received in Connection With Such Affiliate Transaction is Fair, From a Financial
Point of View, to the Company and the Restricted Subsidiaries.
Notwithstanding the Foregoing Limitation, the Company or Any
Restricted Subsidiary May Enter Into or Suffer to Exist the Following:
(a) Any Transaction or Series of Transactions Between the Company and
One or More Restricted Subsidiaries or Between Two or More Restricted
Subsidiaries If Such Transaction is Not Otherwise Prohibited by the Terms of
This Indenture;
(b) Any Restricted Payment Permitted to be Made Pursuant to Section
4.10 Hereof;
(c) the Payment of Compensation (Including Amounts Paid Pursuant to
Employee Benefit Plans) and the Entering Into of Employee Benefit and
Indemnification Arrangements for the Personal Services of Officers, Directors
and Employees of the Company or Any of the Restricted Subsidiaries, So Long as
the Board of Directors in Good Faith Shall Have Approved the Terms Thereof;
(d) Loans and Advances to Employees Made in the Ordinary Course of
Business of the Company or Such Restricted Subsidiary, as the Case May Be, So
Long as Such Loans and Advances Do Not Exceed $5.0 Million in the Aggregate At
Any One Time Outstanding;
(e) Any Agreement as in Effect as of the Issue Date (Or Otherwise
Contemplated by the Plan of Reorganization) or Any Amendment Thereto or Any
Transaction Contemplated Thereby (Including Pursuant to Any Amendment Thereto)
or in Any Replacement Agreement Thereto So Long as Any Such Amendment or
Replacement Agreement is Not More Disadvantageous to the Holders of the Notes in
Any Material Respect Than the Original Agreement as in Effect On the Issue Date;
and
(f) the Issuance and Sale of Any Qualified Capital Stock of the
Company.
Section 4.15. Sale and Leaseback Transactions.
--------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale and Leaseback Transaction with respect to any Property
unless the Company or such Restricted Subsidiary would be entitled to:
(a) Incur Debt in an Amount Equal to the Attributable Debt With
Respect to Such Sale and Leaseback Transaction Pursuant to Section 4.09 Hereof,
and
(b) Create a Lien On Such Property Securing Such Attributable Debt
Without Also Securing the Notes Pursuant to Section 4.11 Hereof.
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.
-------------------------------------------------------
The Company's Board of Directors may designate any of its
Subsidiaries, including any newly formed Subsidiary or any Person that will
become a Subsidiary by way of acquisition, to be an Unrestricted Subsidiary if
that designation would not cause a Default. If any of the Company's Restricted
Subsidiaries is designated as an Unrestricted Subsidiary, the aggregate fair
market value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the newly designated Unrestricted Subsidiary will be
deemed to be an Investment made as of the time of that designation and will
either reduce the amount available for Restricted Payments under Section 4.10(a)
or 4.10(b) or reduce the amount available for future Investments under one or
54
more clauses of the definition of "Permitted Investments," as the Company
determines in its sole discretion. The designation of such a Subsidiary or
Person as an "Unrestricted Subsidiary" will only be permitted if, in the case of
a Restricted Subsidiary, the deemed Investment would be permitted at the time
the Restricted Subsidiary is designated as an Unrestricted Subsidiary and, in
any case, if that Subsidiary or Person otherwise satisfies the requirements set
forth in the definition of "Unrestricted Subsidiary."
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution of the Board of Directors of the Company
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the preceding conditions and was permitted by
Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary would fail to
meet the preceding requirements as an Unrestricted Subsidiary, it will
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Restricted Subsidiary of the Company as of such date, and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09,
the Company will be in default of such covenant. The Board of Directors of the
Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation will be deemed to be an incurrence of
Indebtedness by one of the Company's Restricted Subsidiaries of any outstanding
Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09(a),
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
Section 4.17. REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL.
------------------------------------------------------------
(a) Upon the Occurrence of a Change of Control, the Company Shall,
Within 10 Days of a Change of Control, Make an Offer (The "Change of Control
Offer") Pursuant to the Procedures Set Forth in Section 3.09. Each Holder Shall
Have the Right to Accept Such Offer and Require the Company to Repurchase All or
Any Portion (Equal to $1,000 or an Integral Multiple of $1,000) of Such Holder's
Notes Pursuant to the Change of Control Offer At a Purchase Price, in Cash,
Equal to 101% of the Aggregate Principal Amount of Notes Repurchased, Plus
Accrued and Unpaid Interest (The "Change of Control Purchase Price") On the
Notes Repurchased, to the Purchase Date (Subject to the Right of Holders of
Record On the Relevant Regular Record Date) to Receive Interest To, But
Excluding, the Purchase Date).
(b) Prior to Complying With Any of the Provisions of This "Change of
Control " Covenant, But in Any Event Within 90 Days Following a Change of
Control, the Company Will Either Repay All Outstanding Senior Debt or Obtain the
Requisite Consents, If Any, Under All Agreements Governing Outstanding Senior
Debt to Permit the Repurchase of Notes Required by This Covenant. the Company
Will Publicly Announce the Results of the Change of Control Offer On or as Soon
as Practicable After the Change of Control Payment Date.
(c) the Company Will 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 This Indenture Applicable to a Change of Control Offer
Made by the Company and Purchases All Notes Properly Tendered and Not Withdrawn
Under the Change of Control Offer.
Section 4.18. Future Subsidiary Guarantors.
-----------------------------
the Company Shall Cause Each Person That is or Becomes a Domestic
Subsidiary to Execute and Deliver to the Trustee a Supplemental Indenture
Pursuant to Which Such Domestic Subsidiary Will Fully and Unconditionally
Guarantee Payment of the Notes On the Same Terms and Conditions as Those Set
Forth in Article 10 Hereof.
Section 4.19. Covenant Suspension.
--------------------
(a) During Any Period of Time (A "Suspension Period") That:
55
(i) the Notes Have Investment Grade Ratings From Both Rating Agencies;
and
(ii) No Default or Event of Default Shall Have Occurred and be
Continuing Under This Indenture,
the Company and its Restricted Subsidiaries shall be released from
their obligations to comply with Sections 4.09, 4.10, 4.12, 4.13, 4.14, 4.15,
4.16 and 4.17 (collectively, the "SUSPENDED COVENANTS") but shall remain
obligated to comply with the following:
(iii) Sections 4.01 Through 4.08
(iv) Section 4.11; And
(v) Section 4.18.
(b) the Company Shall Also, Upon Reaching Investment Grade Status,
Remain Obligated to Comply With Section 5.01 (Other Than Clause (E) of the First
Paragraph Thereunder).
(c) in the Event That the Company and the Restricted Subsidiaries are
Not Subject to the Suspended Covenants for Any Period of Time as a Result of the
Preceding Clause (A) And, Subsequently, One or Both of the Rating Agencies
Withdraws Its Ratings or Downgrades the Ratings Assigned to the Notes Below the
Required Investment Grade Ratings or a Default or Event of Default Occurs and is
Continuing, Then the Company and the Restricted Subsidiaries Will Thereafter
Again be Subject to the Suspended Covenants. Compliance With the Suspended
Covenants With Respect to Restricted Payments Made After the Time of Such
Withdrawal, Downgrade, Default or Event of Default Will be Calculated in
Accordance With Section 4.10 Hereof as Though Such Covenant Had Been in Effect
During the Entire Period of Time From the Issue Date; Provided, However, That
There Will Not be Deemed to Have Occurred a Default or Event of Default Under
the Notes With Respect to the Suspended Covenants During the Suspension Period
Solely as a Result of the Company's and Its Restricted Subsidiaries'
Non-compliance With the Suspended Covenants During the Suspension Period.
ARTICLE 5.
SUCCESSORS
----------
Section 5.01. Merger, Consolidation and Sale of Assets.
-----------------------------------------
The Company shall not merge, consolidate or amalgamate with or into
any other Person (other than a merger of a Restricted Subsidiary into the
Company) or sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all its Property in any one transaction or series of transactions
unless:
(a) the Company Shall be the Surviving Person (The "Surviving
Person") or the Surviving Person (If Other Than the Company) Formed by Such
Merger, Consolidation or Amalgamation or to Which Such Sale, Transfer,
Assignment, Lease, Conveyance or Disposition is Made Shall be a Corporation
Organized and Existing Under the Laws of the United States of America, Any State
Thereof or the District of Columbia;
(b) the Surviving Person (If Other Than the Company) Expressly
Assumes, by Supplemental Indenture in Form Satisfactory to the Trustee, Executed
and Delivered to the Trustee by Such Surviving Person, the Due and Punctual
Payment of the Principal Of, and Premium, If Any, and Interest On, All the
Notes, According to Their Tenor, and the Due and Punctual Performance and
Observance of All the Covenants and Conditions of the Indenture to be Performed
by the Company;
(c) in the Case of a Sale, Transfer, Assignment, Lease, Conveyance or
Other Disposition of All or Substantially All the Property of the Company, Such
Property Shall Have Been Transferred as an Entirety or Virtually as an Entirety
to One Person;
56
(d) Immediately Before and After Giving Effect to Such Transaction or
Series of Transactions On a Pro Forma Basis No Default or Event of Default Shall
Have Occurred and be Continuing;
(e) Immediately After Giving Effect to Such Transaction or Series of
Transactions On a Pro Forma Basis, the Company or the Surviving Person, as the
Case May Be, Would be Able to Incur At Least $1.00 of Additional Debt Under
Clause (A) of Section 4.09 Hereof; and
(f) the Company Shall Deliver, or Cause to be Delivered, to the
Trustee, in Form and Substance Reasonably Satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, Each Stating That Such
Transaction and the Supplemental Indenture, If Any, in Respect Thereto Comply
With This Covenant and That All Conditions Precedent Herein Provided for
Relating to Such Transaction Have Been Satisfied.
The Company shall not permit any Subsidiary Guarantor to merge,
consolidate or amalgamate with or into any other Person (other than a merger of
a Restricted Subsidiary into the Subsidiary Guarantor) or sell, transfer,
assign, lease, convey or otherwise dispose of all or substantially all its
Property in any one transaction or series of transactions unless:
(a) the Surviving Person (If Other Than the Subsidiary Guarantor)
Formed by Such Merger, Consolidation or Amalgamation or to Which Such Sale,
Transfer, Assignment, Lease, Conveyance or Disposition is Made Shall be a
Corporation Organized and Existing Under the Laws of the United States of
America, Any State Thereof or the District of Columbia;
(b) the Surviving Person (If Other Than the Subsidiary Guarantor)
Expressly Assumes, by Supplemental Indenture in Form Satisfactory to the
Trustee, Executed and Delivered to the Trustee by Such Surviving Person, the Due
and Punctual Payment of the Principal Of, and Premium, If Any, and Interest On,
All the Notes, According to Their Tenor, and the Due and Punctual Performance
and Observance of All the Obligations of Such Subsidiary Guarantor Under Its
Subsidiary Guarantee;
(c) in the Case of a Sale, Transfer, Assignment, Lease, Conveyance or
Other Disposition of All or Substantially All the Property of Such Subsidiary
Guarantor, Such Property Shall Have Been Transferred as an Entirety or Virtually
as an Entirety to One Person;
(d) Immediately Before and After Giving Effect to Such Transaction or
Series of Transactions On a Pro Forma Basis (And Treating, for Purposes of This
Clause (D), Any Debt That Becomes, or is Anticipated to Become, an Obligation of
the Surviving Person, the Company or Any Restricted Subsidiary as a Result of
Such Transaction or Series of Transactions as Having Been Incurred by the
Surviving Person, the Company or Such Restricted Subsidiary At the Time of Such
Transaction or Series of Transactions), No Default or Event of Default Shall
Have Occurred and be Continuing; and
(e) the Company Shall Deliver, or Cause to be Delivered, to the
Trustee, in Form and Substance Reasonably Satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, Each Stating That Such
Transaction and Such Subsidiary Guarantee, If Any, in Respect Thereto Comply
With This Covenant and That All Conditions Precedent Herein Provided for
Relating to Such Transaction Have Been Satisfied.
This Section 5.01 Shall Not Prohibit Any Subsidiary Guarantor From
Consolidating With, Merging Into or Transferring All or Part of Its Assets to
the Company or Any Other Subsidiary Guarantor. in Addition, the Foregoing
Provisions (Other Than Clause (D) in the First Paragraph of This Section 5.01)
Shall Not Apply to Any Transactions Which Constitute an Asset Sale If the
Company has Complied With Section 4.12 Hereof.
Section 5.02. Successor Corporation Substituted.
----------------------------------
The Surviving Person shall succeed to, and be substituted for, and
may exercise every right and power of the Company under this Indenture and the
predecessor Company shall be released from this Indenture, but the predecessor
Company in the case of:
57
(a) a Sale, Transfer, Assignment, Conveyance or Other Disposition
(Unless Such Sale, Transfer, Assignment, Conveyance or Other Disposition is of
All the Assets of the Company as an Entirety), or
(b) a Lease,
shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
---------------------
Section 6.01. Events of Default.
------------------
Each of the following is an "EVENT OF DEFAULT:"
(a) Failure to Make the Payment of Any Interest On the Notes When the
Same Becomes Due and Payable, and Such Failure Continues for a Period of 30
Days;
(b) Failure to Make the Payment of Any Principal Of, or Premium, If
Any, On, Any of the Notes When the Same Becomes Due and Payable At Its Stated
Maturity, Upon Acceleration, Redemption, Optional Redemption, Required
Repurchase or Otherwise;
(c) Failure to Comply With the Provisions of Sections 4.12, 4.17 or
5.01 Hereof;
(d) Failure to Comply With Any Other Covenant or Agreement in the
Notes or in the Indenture (Other Than a Failure That is the Subject of the
Foregoing Clause (A), (B) or (C)) and Such Failure Continues for 60 Days After
Written Notice is Given to the Company as Provided Below;
(e) a Default Under Any Debt by the Company or Any Restricted
Subsidiary That is a Significant Subsidiary That Results in Acceleration of the
Maturity of Such Debt, or Failure to Pay Any Such Debt At Maturity, in an
Aggregate Amount Greater Than $25.0 Million or Its Foreign Currency Equivalent
At the Time;
(f) Any Judgment or Judgments for the Payment of Money in an
Aggregate Amount in Excess of $25.0 Million (Or Its Foreign Currency Equivalent
At the Time) in Excess of Amounts Which are Covered by Insurance Under
Applicable Policies That Shall be Rendered Against the Company or Any Restricted
Subsidiary That is a Significant Subsidiary and That Shall Not be Waived,
Satisfied or Discharged for Any Period of 60 Consecutive Days During Which a
Stay of Enforcement Shall Not be in Effect; and
(g) the Company or Any of Its Restricted Subsidiaries That are
Significant Subsidiaries Pursuant to or Within the Meaning of Any Bankruptcy
Law:
(A) Commences a Voluntary Case;
(B) Consents to the Entry of an Order for Relief Against It in an
Involuntary Case;
(C) Consents to the Appointment of a Custodian of It or for All
or Substantially All of Its Property;
(D) Makes a General Assignment for the Benefit of Its Creditors;
or
(E) Admits in Writing Its Inability to Pay Its Debts as They
Become Due; and
58
(h) a Court of Competent Jurisdiction Enters an Order or Decree
Under Any Bankruptcy Law That:
(A) is for Relief Against the Company or Any of Its
Significant Subsidiaries in an Involuntary Case; or
(B) Appoints a Custodian of the Company or Any of Its
Significant Subsidiaries or for All or Substantially All of the
Property of the Company or Any of Its Significant Subsidiaries;
or
(C) Orders the Liquidation of the Company or Any of Its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; and
(i) Any Guarantee of a Subsidiary Guarantor That is a Significant
Subsidiary or a Group of Subsidiary Guarantors That, Taken as a Whole, Would
Constitute a Significant Subsidiary Ceases to be in Full Force and Effect (Other
Than in Accordance With the Terms of Such Guarantee) or Any Subsidiary Guarantor
Denies or Disaffirms Its Obligations Under Its Guarantee.
Section 6.02. Acceleration.
-------------
If any Event of Default (other than those of the type described in
Section 6.01(g) or (h) with respect to the Company) occurs and is continuing,
the Trustee may, and the Trustee upon the request of Holders of 25.0% in
principal amount of the outstanding Notes will, or the Holders of at least 25.0%
in principal amount of outstanding Notes may, declare the principal of all the
Notes, together with all accrued and unpaid interest, premium, if any, to be due
and payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that such notice is a notice of acceleration
(the "ACCELERATION NOTICE"), and the same shall become immediately due and
payable.
In the case of an Event of Default specified in Section 6.01(g) or
(h) with respect to the Company, such amount with respect to all the Notes will
become due and payable immediately without any declaration or other act on the
part of the Trustee or the holders of the Notes. Holders may not enforce this
Indenture or the Notes except as provided in this Indenture.
At any time after a declaration of acceleration with respect to the
Notes, the Holders of a majority in principal amount of the Notes then
outstanding (by notice to the Trustee) may rescind and cancel that declaration
and its consequences if:
(a) the Rescission Would Not Conflict With Any Judgment or Decree of
a Court of Competent Jurisdiction;
(b) All Existing Defaults and Events of Default Have Been Cured or
Waived Except Nonpayment of Principal of or Interest On the Notes That has
Become Due Solely by Such Declaration of Acceleration;
(c) to the Extent the Payment of Such Interest is Lawful, Interest
(At the Same Rate Specified in the Notes) On Overdue Installments of Interest
and Overdue Payments of Principal Which has Become Due Otherwise Than by Such
Declaration of Acceleration has Been Paid;
(d) the Company has Paid the Trustee Its Reasonable Compensation and
Reimbursed the Trustee for Its Reasonable Expenses, Disbursements and Advances;
and
(e) in the Event of the Cure or Waiver of an Event of Default of the
Type Described in Section 6.01(G) or (H), the Trustee has Received an Officers'
Certificate That Such Event of Default has Been Cured or Waived.
59
Section 6.03. Other Remedies.
---------------
If an Event of Default shall have occurred and be continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
------------------------
The Holders of a majority in principal amount of the Notes may waive
by consent (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Notes) any then existing
or potential Default, and its consequences, except a default in the payment of
the principal of or interest on any Notes. In the event of any Event of Default
specified in clause (e) of the first paragraph of Section 6.01, such Event of
Default and all consequences of that Event of Default, including without
limitation any acceleration or resulting payment default, will be annulled,
waived and rescinded, automatically and without any action by the Trustee or the
Holders of the Notes, if within 60 days after the Event of Default arose:
(a) the Debt That is the Basis for the Event of Default has Been
Discharged;
(b) the Holders of That Debt Have Rescinded or Waived the
Acceleration, Notice or Action, as the Case May Be, Giving Rise to the Event of
Default; or
(c) If the Default That is the Basis for Such Event of Default has
Been Cured.
When a Default or Event of Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
Section 6.05. Control by Majority.
--------------------
Subject to Section 7.01, Section 7.02(f) (including the Trustee's
receipt of the security or indemnification described therein) and Section 7.07,
in case an Event of Default shall have occurred and be continuing, the Holders
of a majority in aggregate principal amount of the Notes then outstanding will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Notes.
Section 6.06. Limitation on Suits.
--------------------
No Holder will have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any remedy thereunder, unless:
(a) Such Holder has Previously Given to the Trustee Written Notice of
a Continuing Event of Default,
(b) Holders of At Least 25.0% in Aggregate Principal Amount of the
Notes Then Outstanding Have Made Written Request and Offered Reasonable
Indemnity to the Trustee to Institute Such Proceeding as Trustee, and
(c) the Trustee Shall Not Have Received From the Holders of a
Majority in Aggregate Principal Amount of the Notes Then Outstanding a Direction
Inconsistent With Such Request and Shall Have Failed to Institute Such
Proceeding Within 30 Days.
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A Holder may not use this Indenture to affect, disturb or prejudice
the rights of another Holder or to obtain a preference or priority over another
Holder.
Section 6.07. Rights of Holders to Receive Payment.
-------------------------------------
Notwithstanding any other provision of this Indenture (including,
without limitation, Section 6.06), the right of any Holder to receive payment of
principal, premium, if any, and interest on the Notes held by such Holder, on or
after the respective due dates expressed in the Notes (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
---------------------------
If an Event of Default specified in Section 6.01 (g) or (h) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest then due and owing (together with
interest on overdue principal and, to the extent lawful, interest) and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
---------------------------------
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to participate as a member, voting or otherwise, of any
official committee of creditors appointed in such matter and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims, and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that any such compensation, expenses and
advances of the Trustee and its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, moneys, securities and
any other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or any plan of reorganization or arrangement
or otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. Priorities.
-----------
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest respectively; and
61
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
----------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by the
Company, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10.0% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
-------
Section 7.01. Duties of Trustee.
------------------
(a) If an Event of Default Which the Trustee Has, or is Deemed to
Have, Notice of Hereunder has Occurred and is Continuing, the Trustee Shall
Exercise Such of the Rights and Powers Vested in It by This Indenture, and Use
the Same Degree of Care and Skill in Its 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 Duties of the Trustee Shall be Determined Solely by
the Express Provisions of This Indenture, and the Trustee Need
Perform Only Those Duties That are Specifically Set Forth in This
Indenture and No Others, and No Implied Covenants or Obligations
Shall be Read Into This Indenture Against the Trustee; and
(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 (But Need Not
Confirm or Investigate the Accuracy of Mathematical Calculations
or Other Facts Stated Therein or Otherwise Verify the Contents
Thereof).
(c) the Trustee May Not be Relieved From Liabilities for Its Own
Negligent Action, Its Own Negligent Failure to Act, or Its Own Willful
Misconduct, Except That:
(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 Responsible Officer, Unless It
is Proved That the Trustee was Negligent in Ascertaining the
Pertinent Facts;
(3) the Trustee Shall Not be Liable With Respect to Any
Action It Takes or Omits to Take in Good Faith in Accordance With
a Direction Received by It Pursuant to Section 6.05 Hereof; and
62
(4) No Provision of This Indenture Shall Require the Trustee
to Expend or Risk Its Own Funds or Incur Any Liability.
(d) Whether or Not Therein Expressly So Provided, Every Provision of
This Indenture That in Any Way Relates to the Trustee is Subject to Paragraphs
(A), (B) and (C) of This Section.
(e) Except for Information Provided by the Trustee Concerning the
Trustee, the Trustee Shall Have No Responsibility for Any Information in Any
Prospectus or Other Disclosure Material Distributed With Respect to the Notes.
Section 7.02. Rights of Trustee.
------------------
(a) the Trustee May Conclusively Rely Upon Any Document Believed by
It to be Genuine and to Have Been Signed or Presented by the Proper Person. the
Trustee Need Not Investigate Any Fact or Matter Stated in Any Such Document. Any
Facsimile Signature of Any Person On a Document Required or Permitted in This
Indenture to be Delivered to the Trustee Shall Constitute a Legal, Valid and
Binding Execution Thereof by Such Person.
(b) Before the Trustee Acts or Refrains From Acting, It May Require
an Officers' Certificate or an Opinion of Counsel or Both. the Trustee Shall Not
be Liable for Any Action It Takes or Omits to Take in Good Faith in Reliance On
Such Officers' Certificate or Opinion of Counsel. the Trustee May Consult With
Counsel, and the Written Advice of Such Counsel or Any Opinion of Counsel Shall
be Full and Complete Authorization and Protection From Liability in Respect of
Any Action Taken, Suffered or Omitted by It Hereunder in Good Faith and in
Reliance Thereon.
(c) the Trustee May Act Through Its Attorneys and Agents and Shall
Not be Responsible for the Misconduct or Negligence of Any Agent Appointed With
Due Care.
(d) the Trustee Shall Not be Liable for Any Action It Takes or Omits
to Take in Good Faith That It Believes to be Authorized or Within the Rights or
Powers Conferred Upon It by This Indenture. (E) Unless Otherwise Specifically
Provided in This Indenture, Any Demand, Request, Direction or Notice From the
Company Shall be Sufficient If Signed by an Officer of the Company.
(f) the Trustee Shall be Under No Obligation to Exercise Any of the
Rights or Powers Vested in It by This Indenture At the Request or Direction of
Any of the Holders Unless Such Holders Shall Have Offered to the Trustee
Reasonable Security or Indemnity Against the Costs, Expenses and Liabilities
That Might be Incurred by It in Compliance With Such Request or Direction.
(g) the Trustee Shall Not be Deemed to Have Notice of Any Default or
Event of Default Unless a Responsible Officer of the Trustee has Actual
Knowledge Thereof or Unless Written Notice of Any Event Which is in Fact Such a
Default or Event of Default is Received by a Responsible Officer of the Trustee
At the Corporate Trust Office of the Trustee From the Company or the Holders of
25.0% in Aggregate Principal Amount of the Outstanding Notes, and Such Notice
References the Specific Default or Event of Default, the Notes and This
Indenture And, in the Absence of Any Such Notice, the Trustee May Conclusively
Assume That No Such Default or Event of Default Exists.
(h) Money Held by the Trustee in Trust Hereunder Need Not be
Segregated From Other Funds Except to the Extent Required by Law. the Trustee
Shall be Under No Liability for Interest On Any Money Received by It Hereunder
Except as Otherwise Agreed in Writing With the Company.
(i) the Trustee Shall Not be Required to Give Any Bond or Surety in
Respect of the Performance of Its Power and Duties Hereunder.
(j) the Trustee Shall Have No Duty to Inquire as to the Performance
of the Company's Covenants Herein.
63
(k) the Trustee's Immunities and Protections From Liability and Its
Right to Indemnification in Connection With the Performance of Its Duties Under
This Indenture Shall Extend to the Trustee's Officers, Directors, Agents,
Attorneys and Employees. Such Immunities and Protections and Right to
Indemnification, Together With the Trustee's Right to Compensation, Shall
Survive the Trustee's Resignation or Removal, the Defeasance or Discharge of
This Indenture and Final Payment of the Notes.
(l) the Right of the Trustee to Take the Actions Permitted by This
Indenture Shall Not be Construed as an Obligation or Duty to Do So.
Section 7.03. Individual Rights of Trustee.
-----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest, it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11 hereof.
Section 7.04. 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 Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
-------------------
If a Default or Event of Default shall have occurred and be
continuing and if it is known to the Trustee, the Trustee shall mail to Holders
a notice of the Default or Event of Default within 90 days after it occurs
unless such Default or Event of Default has since been cured. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.
Section 7.06. Reports by Trustee to Holders.
------------------------------
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting date
that complies with TIA ss.313(a) (but if no event described in TIA ss.313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA ss.313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss.313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which the Notes are listed in accordance with TIA ss.313(d). The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange and any delisting thereof.
Section 7.07. Compensation and Indemnity.
---------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder as the
Company and the Trustee shall agree in writing. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
64
The Company shall indemnify the Trustee (in its capacity as Trustee)
or any predecessor Trustee (in its capacity as Trustee) against any and all
losses, claims, damages, penalties, fines, liabilities or expenses, including
incidental and out-of-pocket expenses and reasonable attorneys' fees ("LOSSES")
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section
7.07) and defending itself against any claim (whether asserted by the Company or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel if the Trustee
has been reasonably advised by counsel that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Company and in the reasonable judgment of such counsel it is
advisable for the Trustee to engage separate counsel, and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld. The Company need not reimburse any expense or indemnify against any
loss incurred by the Trustee through the Trustee's own willful misconduct, gross
negligence or bad faith.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture, the resignation or removal of
the Trustee and payment in full of the Notes.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal, premium,
if any, and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
Section 7.08. Replacement of Trustee.
-----------------------
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time upon 30 days' prior
notice to the Company and be discharged from the trust hereby created by so
notifying the Company. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(a) the Trustee Fails to Comply With Section 7.10 Hereof;
(b) the Trustee is Adjudged a Bankrupt or an Insolvent or an Order
for Relief is Entered With Respect to the Trustee Under Any Bankruptcy Law;
(c) a Custodian or Public Officer Takes Charge of the Trustee or Its
Property; or
(d) the Trustee Becomes Incapable of Acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of 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. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
65
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10.0% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. Subject to the Lien provided for in Section 7.07 hereof,
the retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
---------------------------------
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation
or banking association, the successor corporation or banking association without
any further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
------------------------------
There shall at all times be a Trustee hereunder that is a Person
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50.0
million (or a wholly-owned subsidiary of a bank or trust company, or of a bank
holding company, the principal subsidiary of which is a bank or trust company
having a combined capital and surplus of at least $50.0 million) as set forth in
its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.310(a)(1), (2) and (5). The Trustee is subject to TIA
ss.310(b).
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to TIAss.311(a), excluding any creditor
relationship listed in TIAss.311(b). A Trustee who has resigned or been removed
shall be subject to TIAss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------------
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Company may, at its option and at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8.
66
Section 8.02. Legal Defeasance and Discharge.
-------------------------------
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE") and each Subsidiary Guarantor shall be released from all of its
obligations under its Subsidiary Guarantee. For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Debt represented by the outstanding Notes, which shall thereafter be deemed to
be "outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in (a), (b), (c) and (d) below, and to
have satisfied all its other obligations under the Notes and this Indenture (and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, or interest on such
Notes when such payments are due, (b) the Company's obligations with respect to
such Notes under Article 2 and Sections 4.01 and 4.02 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder (including claims
of, or payments to, the Trustee pursuant to Section 7.07 hereunder) and the
Company's and each Subsidiary Guarantor's obligations in connection therewith
and (d) this Article 8. If the Company exercises under Section 8.01 hereof the
option applicable to this Section 8.02, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, payment of the Notes may not be
accelerated because of an Event of Default. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
--------------------
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Section 4.03 and Sections 4.09
through 4.17 hereof, and the operation of clause (e) of the first paragraph of
Section 5.01 hereof, with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and each Subsidiary Guarantor shall be released from all of its
obligations under its Subsidiary Guarantee with respect to such covenants in
connection with such outstanding Notes, and the Notes shall thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. If the Company exercises under Section 8.01 hereof the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, payment of the Notes may not be accelerated
because of an Event of Default specified in clauses (d), (e), (f) hereof or
because of the Company's failure to comply with clause (e) of the first
paragraph of Section 5.01 hereof.
Section 8.04. Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes.
The Legal Defeasance or Covenant Defeasance may be exercised only if:
(a) the Company Irrevocably Deposits With the Trustee, in Trust (The
"Defeasance Trust"), for the Benefit of the Holders of the Notes, Cash in U.s.
Dollars, Non-callable U.s. Government Securities, or a Combination of Cash in
U.s. Dollars and Non-callable U.s. Government Securities, Sufficient, in the
Opinion of a Firm of Independent Public Accountants of Recognized International
Standing, to Pay the Principal, Premium, If Any, and Interest On the Outstanding
67
Notes On the Stated Maturity or On the Next Available Redemption Date, as the
Case May Be, and the Company Must Specify Whether the Notes are Being Defeased
to Maturity or to That Particular Redemption Date;
(b) in the Case of Legal Defeasance, the Company Delivers to the
Trustee an Opinion of Counsel Reasonably Acceptable to the Trustee Confirming
That (X) the Company has Received From, or There has Been Published By, the
Internal Revenue Service a Ruling or (Y) Since the Date Hereof, 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 Will Confirm That, the Holders
of the Outstanding Notes Will Not Recognize Income, Gain or Loss for Federal
Income Tax Purposes as a Result of Such Legal Defeasance and Will be Subject to
Federal Income Tax On the Same Amounts, in the Same Manner and At the Same Times
as Would Have Been the Case If Such Legal Defeasance Had Not Occurred;
(c) in the Case of Covenant Defeasance, the Company Delivers to the
Trustee an Opinion of Counsel Reasonably Acceptable to the Trustee Confirming
That the Holders of the Outstanding Notes Will Not Recognize Income, Gain or
Loss for Federal Income Tax Purposes as a Result of Such Covenant Defeasance and
Will be Subject to Federal Income Tax On the Same Amounts, in the Same Manner
and At the Same Times as Would Have Been the Case If Such Covenant Defeasance
Had Not Occurred;
(d) No Event of Default Under Sections 6.01(G) or (H) Hereof Shall
Have Occurred With Respect to the Company At Any Time in the Period Ending On
the 91St Day After the Cash And/or Non-callable U.s. Government Securities Have
Been Deposited in the Defeasance Trust;
(e) Such Legal Defeasance or Covenant Defeasance Will Not Result in a
Breach or Violation Of, or Constitute a Default Under, Any Material Agreement or
Instrument (Other Than This Indenture) to Which the Company or Any of Its
Restricted Subsidiaries is a Party or by Which the Company or Any of Its
Restricted Subsidiaries is Bound;
(f) the Company Delivers to the Trustee an Opinion of Counsel,
Subject to Customary Exceptions, to the Effect That On the 91St Day Following
the Deposit, the Defeasance Trust Funds Will Not be Subject to the Effect of Any
Applicable Bankruptcy, Insolvency, Reorganization or Similar Laws Generally
Affecting Creditors' Rights;
(g) the Company Delivers to the Trustee an Officers' Certificate
Stating That the Deposit was Not Made by the Company With the Intent of
Preferring the Holders of Notes Over the Company's Other Creditors With the
Intent of Defeating, Hindering, Delaying or Defrauding Any Other Creditors of
the Company; and
(h) the Company Delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, Each Stating That All Conditions Precedent Relating to
the Legal Defeasance or the Covenant Defeasance Have Been Complied With.
(i) Notwithstanding the Foregoing, the Opinion of Counsel Required by
Clause (B) Above With Respect to a Legal Defeasance Need Not be Delivered If All
Notes Not Theretofore Delivered to the Trustee for Cancellation (A) Have Become
Due and Payable, (B) Will Become Due and Payable On the Maturity Date Within One
Year or (C) as to Which a Redemption Notice has Been Given Calling the Notes for
Redemption Within One Year, Under Arrangements Satisfactory to the Trustee for
the Giving of Notice of Redemption by the Trustee in the Name, and At the
Expense, of the Company.
Section 8.05. Deposited Cash and U.S. Government Securities to Be Held
---------------------------------------------------------
in Trust; Other Miscellaneous Provisions.
-----------------------------------------
Subject to Section 8.06 hereof, all cash and non-callable U.S.
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "TRUSTEE") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of all sums due and
to become due thereon in respect of principal, premium, if any, and interest,
but such cash and securities need not be segregated from other funds except to
the extent required by law.
68
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or U.S. Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any cash or non-callable U.S. Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent certified public accountants of recognized international
standing expressed in a written certification thereof delivered to the Trustee
(which may be the certification delivered under Section 8.04(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
---------------------
Any cash or non-callable U.S. Government Securities deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in The New York Times and The Wall Street
Journal (national edition), notice that such cash and securities remain
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such cash and securities then remaining shall be repaid to the Company.
Section 8.07. Reinstatement.
--------------
If the Trustee or Paying Agent is unable to apply any cash or
non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such cash and securities in accordance with Section 8.02
or 8.03 hereof, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders to receive such payment from the cash and
securities held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
--------------------------------
Section 9.01. Without Consent of Holders of Notes.
------------------------------------
Notwithstanding Section 9.02 of this Indenture, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Notes or the Subsidiary Guarantees without the consent of any Holder to:
(a) Cure Any Ambiguity, Omission, Defect or Inconsistency;
(b) Provide for the Assumption by a Successor Corporation of the
Obligations of the Company Under This Indenture;
69
(c) Provide for Uncertificated Notes in Addition to or in Place of
Certificated Notes (Provided That the Uncertificated Notes are Issued in
Registered Form for Purposes of Section 163(F) of the Code, or in a Manner Such
That the Uncertificated Notes are Described in Section 163(F)(2)(b) of the
Code);
(d) Add Subsidiary Guarantees or Additional Obligors With Respect to
the Notes;
(e) Secure the Notes;
(f) Add to the Covenants of the Company for the Benefit of the
Holders of the Notes or to Surrender Any Right or Power Conferred Upon the
Company;
(g) Make Any Other Change That Does Not Adversely Affect the Legal
Rights Hereunder of Any Such Holder; or
(h) Make Any Change to Comply With Any Requirement of the Commission
in Order to Effect or Maintain the Qualification of This Indenture Under the
Tia.
Section 9.02. With Consent of Holders of Notes.
---------------------------------
Except as provided below in this Section 9.02, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Notes and the Subsidiary Guarantees with the consent of the Holders of a
majority in principal amount of the Notes then outstanding voting as a single
class (including consents obtained in connection with a purchase of or tender
offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (except a continuing Default or
Event of Default in the payment of principal, premium, if any, or interest on
the Notes) or compliance with any provision of this Indenture or the Notes
(except for certain covenants and provisions of this Indenture which cannot be
amended without the consent of each Holder) may be waived with the consent of
the Holders of a majority in principal amount of the Notes then outstanding
voting as a single class (including consents obtained in connection with a
purchase of or tender offer or exchange offer for the Notes).
Without the consent of each Holder, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(a) Reduce the Principal Amount of Notes Whose Holders Must Consent
to an Amendment, Supplement or Waiver or Make Any Change in the Provisions
Requiring Each Holder's Consent Under This Section 9.02;
(b) Reduce the Rate of or Extend the Time for Payment of Interest,
Including Defaulted Interest, On Any Notes;
(c) Reduce the Principal of or Extend the Fixed Maturity of Any
Notes, or Change the Date On Which Any Notes May be Subject to Redemption or
Repurchase, or Reduce the Redemption or Repurchase Price for Those Notes;
(d) Make Any Note Payable in Money Other Than That Stated in the Note
and This Indenture;
(e) Impair the Right of Any Holder to Receive Payment of Principal,
Premium or Interest On That Holder's Notes On or After the Due Dates for Those
Payments, or to Bring Suit to Enforce That Payment On or With Respect to Such
Holder's Notes;
(f) Modify Sections 4.08 or 6.04 Hereof;
(g) Release Any Subsidiary Guarantor From Any of Its Obligations
Under Its Subsidiary Guarantee or This Indenture Other Than in Accordance With
the Provisions of This Indenture, or Amend or Modify Any Provision Relating to
Such Release;
70
(h) Amend This Indenture or Any Subsidiary Guarantee to Subordinate
the Notes or Such Subsidiary Guarantee to Any Other Obligation of the Company or
the Applicable Subsidiary Guarantor;
(i) Reduce the Premium Payable Upon a Change of Control Or, At Any
Time After a Change of Control has Occurred, Change the Time At Which the Change
of Control Offer Relating Thereto Must be Made or At Which the Notes Must be
Repurchased Pursuant to Such Change of Control Offer;
(j) At Any Time After the Company is Obligated to Make a Prepayment
Offer With the Excess Proceeds From Asset Sales, Change the Time or Price At
Which Such Prepayment Offer Must be Made or At Which the Notes Must be
Repurchased Pursuant Thereto.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any supplemental
indenture. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to consent to
such supplemental indenture, whether or not such Holders remain Holders after
such record date; provided that unless such consent shall have become effective
by virtue of the requisite percentage having been obtained prior to the date
which is 120 days after such record date, any such consent previously given
shall automatically and without further action by any Holder be cancelled and of
no further effect.
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.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holder of each Note affected
thereby to such Holder's address appearing in the Note Register a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or waiver.
Section 9.03. Compliance with Trust Indenture Act.
------------------------------------
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
----------------------------------
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion thereof that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion thereof if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
---------------------------------
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
71
Section 9.06. Trustee to Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
None of the Company nor any Subsidiary Guarantor may sign an amendment or
supplemental indenture until its Board of Directors approves it. In executing
any amended or supplemental indenture, the Trustee shall be entitled to receive
and (subject to Section 7.01 hereof) shall be fully protected in relying upon an
Officer's Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture is authorized or permitted by this
Indenture and that such amended or supplemental indenture is the legal, valid
and binding obligations of the Company enforceable against it in accordance with
its terms, subject to customary exceptions and that such amended or supplemental
indenture complies with the provisions hereof (including Section 9.03).
ARTICLE 10.
GUARANTEES
----------
Section 10.01. Subsidiary Guarantees.
----------------------
Subject to this Article 10, each of the Subsidiary Guarantors hereby
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns that: (a) the
principal of, premium, if any, and interest on the Notes shall be promptly paid
in full when due, subject to any applicable grace period, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal
of, and interest on, the Notes, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder shall be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same shall be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration pursuant to Section 6.02 hereof, redemption
or otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Subsidiary Guarantors shall
be jointly and severally obligated to pay the same immediately. Each Subsidiary
Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
Each Subsidiary Guarantor hereby agrees that its obligations with
regard to this Subsidiary Guarantee shall be joint and several and
unconditional, irrespective of the validity or enforceability of the Notes or
the obligations of the Company under this Indenture, the absence of any action
to enforce the same, the recovery of any judgment against the Company or any
other obligor with respect to this Indenture, the Notes or the Obligations of
the Company under this Indenture or the Notes, any action to enforce the same or
any other circumstances (other than complete performance) that might otherwise
constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.
Each Subsidiary Guarantor further, to the extent permitted by law, waives and
relinquishes all claims, rights and remedies accorded by applicable law to
guarantors and agrees not to assert or take advantage of any such claims, rights
or remedies, including but not limited to: (a) any right to require any of the
Trustee, the Holders or the Company (each a "BENEFITED Party"), as a condition
of payment or performance by such Subsidiary Guarantor, to (1) proceed against
the Company, any other guarantor (including any other Subsidiary Guarantor) of
the Obligations under the Subsidiary Guarantees or any other Person, (2) proceed
against or exhaust any security held from the Company, any such other guarantor
or any other Person, (3) proceed against or have resort to any balance of any
deposit account or credit on the books of any Benefited Party in favor of the
Company or any other Person, or (4) pursue any other remedy in the power of any
Benefited Party whatsoever; (b) any defense arising by reason of the incapacity,
lack of authority or any disability or other defense of the Company including
any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Subsidiary Guarantees or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Company from any cause other than payment in full of the
Obligations under the Subsidiary Guarantees; (c) any defense based upon any
statute or rule of law that provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Benefited Party's errors or omissions
in the administration of the Obligations under the Subsidiary Guarantees, except
behavior which amounts to bad faith; (e)(1) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms of the
Subsidiary Guarantees and any legal or equitable discharge of such Subsidiary
72
Guarantor's obligations hereunder, (2) the benefit of any statute of limitations
affecting such Subsidiary Guarantor's liability hereunder or the enforcement
hereof, (3) any rights to set-offs, recoupments and counterclaims and (4)
promptness, diligence and any requirement that any Benefited Party protect,
secure, perfect or insure any security interest or lien or any property subject
thereto; (f) notices, demands, presentations, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of the Subsidiary Guarantees, notices of default under the Notes or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Obligations under the Subsidiary Guarantees or any agreement
related thereto, and notices of any extension of credit to the Company and any
right to consent to any thereof; (g) to the extent permitted under applicable
law, the benefits of any "One Action" rule and (h) any defenses or benefits that
may be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of the Subsidiary
Guarantees. Except to the extent expressly provided herein, including Sections
8.02, 8.03 and 10.05, each Subsidiary Guarantor hereby covenants that its
Subsidiary Guarantee shall not be discharged except by complete performance of
the obligations contained in its Subsidiary Guarantee and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Subsidiary Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Subsidiary Guarantors any amount paid by either to the Trustee or such
Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until indefeasible payment in full of all obligations
guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.02 hereof for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby and
(y) in the event of any declaration of acceleration of such obligations as
provided in Section 6.02 hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Subsidiary Guarantors for
the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have
the right to seek contribution from any non-paying Subsidiary Guarantor so long
as the exercise of such right does not impair the rights of the Holders under
the Subsidiary Guarantee.
Section 10.02. Limitation on Subsidiary Guarantor Liability.
---------------------------------------------
Each Subsidiary Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law or Canadian federal or provincial law to the extent applicable to any
Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Subsidiary Guarantors hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under this Article 10 shall be limited
to the maximum amount as shall, after giving effect to such maximum amount and
all other contingent and fixed liabilities of such Subsidiary Guarantor that are
relevant under such laws, including, if applicable, its guarantee of all
obligations under Credit Facilities, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article 10, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
Section 10.03. Execution and Delivery of Subsidiary Guarantee.
----------------------------------------------
To evidence its Subsidiary Guarantee set forth in Section 10.01
hereof, each Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guarantee in substantially the form included in Exhibit E shall be
endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on behalf
of such Subsidiary Guarantor by an Officer of such Subsidiary Guarantor.
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Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee
set forth in Section 10.01 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantors.
Section 10.04. Subsidiary Guarantors May Consolidate, etc. on Certain Terms.
-------------------------------------------------------------
Except as otherwise provided in Section 10.05 hereof, no Subsidiary
Guarantor may consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person) another Person whether or not
affiliated with such Subsidiary Guarantor unless:
(A) Subject to Section 10.05 Hereof, the Person Formed by or
Surviving Any Such Consolidation or Merger (If Other Than a Subsidiary Guarantor
or the Company) Unconditionally Assumes All the Obligations of Such Subsidiary
Guarantor, Pursuant to a Supplemental Indenture in Form and Substance Reasonably
Satisfactory to the Trustee On the Terms Set Forth Herein or Therein; and
(B) the Subsidiary Guarantor Complies With the Requirements of
Article 5 Hereof.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Subsidiary Guarantees to be endorsed
upon all of the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such
Subsidiary Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Subsidiary Guarantor with
or into the Company or another Subsidiary Guarantor, or shall prevent any sale
or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or another Subsidiary Guarantor.
Section 10.05. Releases Following Sale of Assets, Etc.
---------------------------------------
In the event of (i) the redesignation of a Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the provisions of Section 4.16 of
this Indenture, or (ii) a sale or other disposition of all of the assets of any
Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of any Subsidiary Guarantor, in
each case to a Person that is not (either before or after giving effect to such
transactions) a Subsidiary of the Company, then such Subsidiary Guarantor (in
the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the capital stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a sale or other disposition
of all or substantially all of the assets of such Subsidiary Guarantor) shall be
released and relieved of any obligations under its Subsidiary Guarantee;
provided that, in the case of clause (ii) of this Section, the net proceeds of
such sale or other disposition are applied in accordance with the applicable
provisions of this Indenture, including without limitation Section 4.12 hereof.
Upon delivery by the Company to the Trustee of an Officers' Certificate and an
74
Opinion of Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of this Indenture, including
without limitation Section 4.12 or Section 4.16 hereof, as applicable, the
Trustee shall execute any documents reasonably required in order to evidence the
release of any Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee.
Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Subsidiary Guarantor
under this Indenture as provided in this Article 10.
ARTICLE 11.
SATISFACTION AND DISCHARGE
--------------------------
Section 11.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect, except as to surviving rights of registration of transfer or exchange of
the Notes, as to all Notes issued hereunder, when:
(a) Either:
(i) All Notes That Have Been Previously Authenticated (Except Lost,
Stolen or Destroyed Notes That Have Been Replaced or Paid and Notes for
Whose Payment Money has Previously Been Deposited in Trust or Segregated
and Held in Trust by the Company and is Thereafter Repaid to the Company or
Discharged From the Trust) Have Been Delivered to the Trustee for
Cancellation; or
(ii) All Notes That Have Not Been Previously Delivered to the Trustee
for Cancellation (A) Have Become Due and Payable or (B) Will Become Due and
Payable At Their Maturity Within One Year or (C) are to be Called for
Redemption Within One Year Under Arrangements Satisfactory to the Trustee
for the Giving of a Notice of Redemption by the Trustee, and the Company
has Irrevocably Deposited or Caused to be Deposited With the Trustee as
Trust Funds in Trust Solely for the Benefit of the Holders, Cash in U.s.
Dollars, Non-callable U.s. Government Securities, or a Combination Thereof,
in Such Amounts as Will be Sufficient Without Consideration of Any
Reinvestment of Interest, to Pay and Discharge the Entire Debt On the Notes
Not Previously Delivered to the Trustee for Cancellation for Principal,
Premium, If Any, and Interest On the Notes to the Date of Deposit, in the
Case of Notes That Have Become Due and Payable, or to the Stated Maturity
or Redemption Date, as the Case May Be;
(b) the Company has Paid or Caused to be Paid All Other Sums Payable
by It Under This Indenture; and
(c) the Company Delivers to the Trustee an Officers' Certificate and
Opinion of Counsel Stating That All Conditions Precedent Under This Indenture
Relating to the Satisfaction and Discharge of This Indenture Have Been
Satisfied.
Section 11.02. Deposited Cash and U.S. Government Securities to Be Held
--------------------------------------------------------
in Trust; Other Miscellaneous Provisions.
-----------------------------------------
Subject to Section 11.03 hereof, all cash and non-callable U.S.
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
11.02, the "Trustee") pursuant to Section 11.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest but such cash and securities need not be segregated from other funds
except to the extent required by law.
75
Section 11.03. Repayment to Company.
---------------------
Any cash or non-callable U.S. Government Securities deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on, any Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder shall thereafter, as an unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such cash and securities, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such cash and securities
remain unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such cash and securities then remaining will be repaid to
the Company.
ARTICLE 12.
MISCELLANEOUS
-------------
Section 12.01. Trust Indenture Act Controls.
-----------------------------
If any provision of this Indenture limits, qualifies or conflicts
with another provision that is required to be included in this Indenture by the
TIA, the provision required by the TIA shall control.
Section 12.02. Notices.
--------
Any notice or communication by the Company, the Subsidiary Guarantors
or the Trustee to the other is duly given if in writing and delivered in person
or mailed by first class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next-day delivery,
to the other's address:
If to the Company or any Subsidiary Guarantor:
Attention:
Telecopier No.:
With a copy to:
If to the Trustee:
Attention:
Telecopier No.:
The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Trustee)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery. All notices and communications to the
Trustee shall be deemed duly given and effective only upon receipt.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next-day delivery to its address shown on the Note
Register. Any notice or communication shall also be so mailed to any Person
described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail
a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
76
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
-------------------------------------------------------------
Holders may communicate pursuant to TIAss.312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA
ss.312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee:
(a) an Officers' Certificate in Form and Substance Reasonably
Satisfactory to the Trustee (Which Shall Include the Statements Set Forth in
Section 12.05 Hereof) Stating That, in the Opinion of the Signers, All
Conditions Precedent and Covenants, If Any, Provided for in This Indenture
Relating to the Proposed Action Have Been Complied With; and
(b) an Opinion of Counsel in Form and Substance Reasonably
Satisfactory to the Trustee (Which Shall Include the Statements Set Forth in
Section 12.05 Hereof) Stating That, in the Opinion of Such Counsel, All Such
Conditions Precedent and Covenants Have Been Complied With.
Section 12.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss.314(a)(4)) shall comply with the provisions of TIA
ss.314(e) and shall include:
(a) a Statement That the Person Making Such Certificate or Opinion
has Read Such Covenant or Condition;
(b) a Brief Statement as to the Nature and Scope of the Examination
or Investigation Upon Which the Statements or Opinions Contained in Such
Certificate or Opinion are Based;
(c) a Statement That, in the Opinion of Such Person, He or She has
Made Such Examination or Investigation as is Necessary to Enable Such Person to
Express an Informed Opinion as to Whether or Not Such Covenant or Condition has
Been Complied With; and
(d) a Statement as to Whether or Not, in the Opinion of Such Person,
Such Condition or Covenant has Been Complied With.
With respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 12.06. Rules by Trustee and Agents.
----------------------------
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
77
Section 12.07. No Personal Liability of Directors, Officers, Employees
--------------------------------------------------------
and Stockholders.
-----------------
No past, present or future director, officer, employee, incorporator
or stockholder of the Company, or any Subsidiary Guarantor, as such, shall have
any liability for any obligations of the Company or the Subsidiary Guarantors
under the Notes, the Subsidiary Guarantees, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law.
--------------
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10. Successors.
-----------
All covenants and agreements of the Company in this Indenture and the
Notes shall bind its successors. All covenants and agreements of the Trustee in
this Indenture shall bind its successors.
Section 12.11. Severability.
-------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12. Counterpart Originals.
----------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. Table of Contents, Headings, etc.
---------------------------------
The Table of Contents, Cross-Reference Table and Headings in this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 12.14. Qualification of this Indenture.
--------------------------------
The Company shall qualify this Indenture under the TIA and shall pay
all reasonable costs and expenses (including attorneys' fees and expenses for
the Company, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be entitled to receive from the Company any such Officers' Certificates,
Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.
[Signatures on following page]
78
SIGNATURES
Dated as of [ ], 2003
COMPANY:
ARMSTRONG WORLD INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
[SUBSIDIARY GUARANTORS]:
By:
-----------------------------
Name:
Title:
TRUSTEE:
Wells Fargo Bank Minnesota, N.A.
By:
------------------------------
Name:
Title:
EXHIBIT A
================================================================================
(Face of Note)
[ ]% SENIOR NOTES DUE 201[ ]
CUSIP _____________
NO.____ $_____________
ARMSTRONG WORLD INDUSTRIES, INC.
promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of
_________________ Dollars ($______________) on [ ], [ ].
Interest Payment Dates: [ ] and [ ], commencing [ ], 20[ ].
Record Dates: [ ] and [ ].
Dated: ______________, 20[ ].
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officer.
ARMSTRONG WORLD INDUSTRIES, INC.
By:
------------------------------
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
[NAME OF TRUSTEE],
as Trustee
By:
---------------------------------------
Authorized Signatory
Dated _____________, 2003
A-2
(Back of Note)
[ ]% SENIOR NOTES DUE 201[ ]
[Insert the Global Note Legend, if applicable pursuant to the terms of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the terms of the
Indenture]
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Armstrong World Industries, Inc., a Pennsylvania
corporation (the "COMPANY"), promises to pay interest on the principal amount of
this Note at [ ](10)% per annum until maturity. The Company shall pay interest
semi-annually on [ ] and [ ] of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each an "INTEREST PAYMENT DATE").
Interest on the Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of original
issuance; provided, however, that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be the first of [ ] or [ ] to occur after
the date of issuance. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1.0% per annum in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods), from
time to time on demand at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are Holders at the close of
business on the [ ] or [ ] next preceding the Interest Payment Date, even if
such Notes are cancelled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.09 of the Indenture with respect
to defaulted interest. The Notes shall be payable as to principal, premium, if
any, and interest, if any, at the office or agency of the Company maintained for
such purpose, or, at the option of the Company, payment of interest may be made
by check mailed to the Holders at their addresses set forth in the Note
Register; provided, however, that payment by wire transfer of immediately
available funds shall be required with respect to principal of and interest, if
any, and premium, if any, on all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the Company or the
Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, [ ], the Trustee under the
Indenture, shall act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of
its subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of [ ], 2003 ("INDENTURE") among the Company, the Subsidiary Guarantors party
thereto and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are obligations of the
Company unlimited in aggregate principal amount.
- --------------------
(10) See footnote 4.
A-3
5. OPTIONAL REDEMPTION.
(a) From the Issue Date through [ ], 2004,(11) the Company may redeem
all or any portion of the Notes, at once or over time, at a redemption price
expressed as a percentage of principal amount) equal to 100.0% of the principal
amount of the Notes to be redeemed, plus accrued and unpaid interest 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).
(b) At Any Time and From Time to Time During the Twelve-month Period
Commencing On [ ] of the Years Indicated Below, the Company May Redeem All or
Any Portion of the Notes At the Redemption Prices (Expressed as Percentages of
Principal Amount) Set Forth Below, Plus Accrued and Unpaid Interest On the Notes
Redeemed, to the Applicable 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):
Year Percentage
---- ----------
2007...................................................[ ]%
2008...................................................[ ]%
2009 and thereafter....................................[100.0]%
(c) At Any Time and From Time to Time Prior to [ ], 20[ ], the
Company May Redeem Up to 35.0% of the Aggregate Principal Amount of the Notes
Issued Under This Indenture At a Redemption Price (Expressed as a Percentage of
Principal Amount) Equal to [ ]%(12) of the Principal Amount Thereof, Plus
Accrued and Unpaid Interest 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) With the Net Cash Proceeds of One or More Equity
Offerings by the Company or the Direct or Indirect Parent of the Company (To the
Extent, in the Case of the Direct or Indirect Parent, That the Net Cash Proceeds
of the Equity Offerings are Contributed to the Common or Non-redeemable
Preferred Equity Capital That is Not Convertible or Exchangeable for Debt or
Disqualified Stock of the Company); Provided, However, That After Giving Effect
to Any Such Redemption, At Least 65.0% of the Aggregate Principal Amount of the
Notes Initially Issued Under This Indenture (Excluding Notes Held by the Company
and Its Subsidiaries) Remains Outstanding Immediately After Giving Effect to
Such Redemption. Any Such Redemption Shall be Made Within 75 Days of Such Equity
Offering Upon Not Less Than 30 Nor More Than 60 Days' Prior Notice.
(d) Any Prepayment Pursuant to This Paragraph Shall be Made Pursuant
to the Provisions of Sections 3.01 Through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 4.12 and
4.17 of the Indenture, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple of $1,000) of such Holder's Notes (a "CHANGE OF
CONTROL OFFER") at a purchase price, in cash, equal to 101% of the aggregate
principal amount of the Notes repurchased, plus accrued and unpaid interest, if
any, on the Notes repurchased to the Purchase Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest to,
but excluding the Purchase Date).
(b) If the Company or one of its Restricted Subsidiaries consummates
any Asset Sales, any Net Available Cash from Asset Sales that are not applied or
- ---------------------------
(11) 180 days after the Issue Date.
(12) Par plus coupon.
A-4
invested as provided in Section 4.12 of the Indenture will constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $25.0 million,
the Company will make an offer to all Holders of Notes to purchase the maximum
principal amount of Notes and, if the Company is required to do so under the
terms of any other Indebtedness that is pari passu with the Notes, such other
Indebtedness on a pro rata basis with the Notes, that may be purchased out of
the Excess Proceeds (a "PREPAYMENT OFFER"). The offer price in any Prepayment
Offer will be equal to 100% of principal amount plus accrued and unpaid interest
and Additional Interest, if any, to the date of purchase, and will be payable in
cash. If any Excess Proceeds remain after consummation of the purchase of all
properly tendered and not withdrawn Notes pursuant to a Prepayment Offer, the
Company may use such remaining Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and
other pari passu Indebtedness tendered into such Prepayment Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis. Upon completion of each
Prepayment Offer, the amount of Excess Proceeds will be reset at zero. Holders
of Notes that are the subject of an offer to purchase will receive a Prepayment
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents,
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before the mailing of a notice of redemption of Notes to be redeemed or during
the period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Company, the Subsidiary Guarantors and the Trustee may amend or supplement
the Indenture, the Notes or the Subsidiary Guarantees with the consent of the
Holders of a majority in principal amount of the then outstanding Notes voting
as a single class (including consents obtained in connection with a purchase of
or tender offer or exchange offer for the Notes), and, subject to Sections 6.04
and 6.07 of the Indenture, any existing Default or Event of Default (except a
continuing Default or Event of Default in the payment of principal, premium, if
any, or interest on the Notes) or compliance with any provision of the Indenture
or the Notes (except for certain covenants and provisions of the Indenture that
cannot be amended without the consent of each Holder) may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Notes then outstanding voting as a single class (including consents obtained in
connection with a purchase of or tender offer or exchange offer for the Notes).
Without the consent of any Holder, the Company, the Subsidiary Guarantors and
the Trustee may amend or supplement the Indenture, the Notes or the Subsidiary
Guarantees to cure any ambiguity, omission, defect or inconsistency, to provide
for the assumption by a successor corporation, partnership or limited liability
company of the obligations of the Company under the Indenture, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to secure
the Notes, to add to the covenants of the Company for the benefit of the Holders
of the Notes or to surrender any right or power conferred upon the Company, to
make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, or to make any change to comply with any
requirement of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of
Default under the Indenture: (i) failure to make the payment of any interest on
the Notes when the same becomes due and payable, and such failure continues for
A-5
a period of 30 days; (ii) failure to make the payment of any principal of, or
premium, if any, on, any of the Notes when the same becomes due and payable at
its Stated Maturity, upon acceleration, redemption, optional redemption,
required repurchase or otherwise; (iii) failure to comply with the provisions of
Sections 4.12, 4.17 or 5.01 of the Indenture; (iv) failure to comply with any
other covenant or agreement in the Notes or in the Indenture (other than a
failure that is the subject of the foregoing clause (i), (ii) or (iii)) and such
failure continues for 60 days after written notice is given to the Company as
provided below; (v) a default under any Debt by the Company or any Restricted
Subsidiary that is a Significant Subsidiary that results in acceleration of the
maturity of such Debt, or failure to pay any such Debt at maturity, in an
aggregate amount greater than $25.0 million or its foreign currency equivalent
at the time; (vi) any judgment or judgments for the payment of money in an
aggregate amount in excess of $25.0 million (or its foreign currency equivalent
at the time) in excess of amounts which are covered by insurance under
applicable policies that shall be rendered against the Company or any Restricted
Subsidiary that is a Significant Subsidiary and that shall not be waived,
satisfied or discharged for any period of 60 consecutive days during which a
stay of enforcement shall not be in effect; (vii) certain events of bankruptcy,
insolvency or reorganization affecting the Company or any of Restricted
Subsidiary that is a Significant Subsidiary; and (viii) any guarantee of a
Subsidiary Guarantor that is a Significant Subsidiary or a group of Subsidiary
Guarantors that, taken as a whole, would constitute a Significant Subsidiary
ceases to be in full force and effect (other than in accordance with the terms
of such guarantee) or any Subsidiary Guarantor denies or disaffirms its
obligations under its guarantee.
If any Event of Default shall have occurred and be continuing, the
Trustee or the Holders of at least 25.0% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency described in the Indenture with
respect to the Company, all outstanding Notes shall become due and payable
without further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations,
the Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any Subsidiary
Guarantor shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Indenture, the Notes or any Subsidiary Guarantee
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A-6
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
18. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.12 or 4.17 of the Indenture, check the box below:
Section 4.12 [ ]
Section 4.17 [ ]
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.12 or Section 4.17 of the Indenture, state the amount you
elect to have purchased: $_____________________
Date:_______________________ Your Signature:________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:
_______________________________________________
SIGNATURE GUARANTEE:
----------------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or other tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
_________________________________________________________
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: ______________
Your Signature:_______________________________________
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:__________________________________
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for
an interest in another Global Note or for a Definitive Note, or exchanges of a
part of another Global Note or Definitive Note for an interest in this Global
Note, have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized signatory
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Custodian
---------------- ------------------- ------------------- --------- ---------
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Armstrong World Industries, Inc.
[address]
Attention: Chief Financial Officer and Corporate Secretary
[Trustee] [address] Attention:
Telecopier No.:
Re: [ ]% Senior Notes due 2010
Reference is hereby made to the Indenture, dated as of , 2003 (the
"Indenture"), among Armstrong World Industries, Inc., as issuer (the "Company"),
the Subsidiary Guarantors party thereto and _________________, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] Check if Transferee will take delivery of a beneficial
interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest in the Global Note or Definitive Note is being transferred to a Person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest in the Global Note or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States and
applicable securities laws of any other applicable jurisdiction. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest in the Global Note or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2.[ ] Check if Transferee will take delivery of a beneficial interest
in the Regulation S Global Note or a Definitive Note pursuant to Regulation S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(a) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
B-1
3.[ ] Check and complete if Transferee will take delivery of a
beneficial interest in the IAI Global Note or a Definitive Note pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States and
the securities laws of any other applicable jurisdiction, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d)[ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or
Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global
Note or Restricted Definitive Notes and the requirements of the
exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or
the Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with
the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI
Global Note and/or the Definitive Notes and in the Indenture and the
Securities Act.
4. [ ] Check if Transferee will take delivery of a
beneficial interest in an Unrestricted Global Note or of an
Unrestricted Definitive Note.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and the securities laws of any other applicable jurisdiction and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(b)[ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and the securities laws of any other applicable
jurisdiction and (ii) the restrictions on transfer contained in the Indenture
B-2
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and the securities laws of any other applicable jurisdiction and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:_________________________________
Name:
Title:
Dated: ______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the
following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________),
or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE OF (a), (b) OR (c)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________),
or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________);
or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Armstrong World Industries, Inc.
[address]
Attention: Chief Financial Officer and Corporate Secretary
[Trustee] [address] Attention:
Telecopier No.:
Re: [ ]% Senior Notes due 2010
------------------------------
Reference is hereby made to the Indenture, dated as of
______________, 2003 (the "Indenture"), among Armstrong World Industries, Inc.,
as issuer (the "Company"), the Subsidiary Guarantors party thereto and
___________________, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the "Exchange").
In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in
a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Note and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Note and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
C-1
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CIRCLE ONE] 144A Global Note, Regulation S Global Note, IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Definitive Note and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
________________________________________
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: _________________________________
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Armstrong World Industries, Inc.
[address]
Attention: Chief Financial Officer and Corporate Secretary
[Trustee] [address] Attention:
Telecopier No.:
Re: [ ]% Senior Notes due 2010
------------------------------
Reference is hereby made to the Indenture, dated as of
_______________, 2003 (the "Indenture"), among Armstrong World Industries, Inc.,
as issuer (the "Company"), the Subsidiary Guarantors party thereto and
____________________, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) for so long
as the Notes are eligible for resale pursuant to Rule 144A under the Securities
Act to a person we reasonably believe is a "qualified institutional buyer" (as
defined therein), (C) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you and to the Company a signed letter substantially
in the form of this letter and, if such transfer is in respect of a principal
amount of Notes, at the time of transfer of less than US $250,000, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) to persons outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
D-1
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and 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 Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment. We have had access to such financial and other
information and have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto, as we deem necessary
in connection with our decision to purchase the Notes.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion and are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the Securities Act of
the securities laws of any state of the United States or any other applicable
jurisdiction.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. This letter shall be governed by, and
construed in accordance with, the laws of the State of New York.
__________________________________________
[Insert Name of Accredited Investor]
By:_______________________________________
Name:
Title:
Dated: _________________
D-2
EXHIBIT E
FORM OF NOTATION OF SUBSIDIARY GUARANTEE
For value received, each Subsidiary Guarantor (which term includes
any successor Person under the Indenture), jointly and severally,
unconditionally guarantees, to the extent set forth in the Indenture and subject
to the provisions in the Indenture, dated as of [ ] (the "Indenture"), among
ARMSTRONG WORLD INDUSTRIES, INC., as issuer (the "Company"), the Subsidiary
Guarantors listed on the signature pages thereto and [ ], as trustee (the
"Trustee"), (a) the due and punctual payment of the principal of and premium, if
any, on the Notes, whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal and
premium, if any, and, to the extent permitted by law, interest and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms of the Indenture and (b) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Subsidiary
Guarantors to the Holders of Notes and to the Trustee pursuant to the Subsidiary
Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms of
the Subsidiary Guarantee. This Subsidiary Guarantee is subject to release as and
to the extent set forth in Sections 8.02, 8.03 and 10.05 of the Indenture. Each
Holder of a Note, by accepting the same, agrees to and shall be bound by such
provisions.
[SUBSIDIARY GUARANTORS]
By: ____________________________
Name:
Title:
E-1