USI AMERICAN HOLDINGS, INC., as Issuer,
U.S. INDUSTRIES, INC., as Parent Guarantor
and
PNC BANK, NATIONAL ASSOCIATION, as Trustee
INDENTURE
Dated as of December 12, 1996
$125,000,000
7 1/4% SENIOR NOTES DUE DECEMBER 1, 2006
Reconciliation and tie between Trust Indenture Act of 1939, as amended, and
Indenture dated as of December 12, 1996
Trust Indenture Indenture
Act Section Section
ss. 310(a)(1)...............................................609
(a)(2)................................................609
(a)(5)................................................609
(b)...................................................607, 608, 610
ss. 311(a)..................................................613
ss. 312(a)..................................................701
(c)...................................................702
ss. 313(a)..................................................703
(b)(2)................................................703
(c)...................................................703, 704
(d)...................................................703(b)
ss. 314(a)..................................................704
(a)(4)................................................1012
(c)(1)................................................103
(c)(2)................................................103
(e)...................................................103
ss. 315(a)..................................................601(b)
(b)...................................................602
(c)...................................................601(a)
(d)...................................................601(c), 603
(e)...................................................514
ss. 316(a)(last sentence)...................................101 ("Outstanding")
(a)(1)(A).............................................512
(a)(1)(B).............................................513
(b)...................................................508
(c)...................................................105(e)
ss. 317(a)(1)...............................................503
(a)(2)................................................504
(b)...................................................1003
ss. 318(a)..................................................108
__________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
(i)
TABLE OF CONTENTS
PAGE
PARTIES......................................................................1
RECITALS.....................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions...................................................2
"Affiliate"................................................2
"Agent Member".............................................2
"Applicable Procedures"....................................2
"Asset Sale"...............................................3
"Attributable Debt"........................................3
"Bankruptcy Law"...........................................3
"Board of Directors".......................................3
"Board Resolution".........................................3
"Business Day".............................................3
"Capital Lease Obligation".................................4
"Capital Stock"............................................4
"Cash Equivalents".........................................4
"Cedel"....................................................4
"Commission"...............................................4
"Comparable Treasury Issue"................................4
"Comparable Treasury Price"................................5
"Consolidated Net Income"..................................5
"Consolidated Net Tangible Assets".........................5
"Consolidation"............................................6
"Corporate Trust Office"...................................6
"Credit Agreement".........................................6
"Debt".....................................................6
"Default"..................................................6
"Depositary"...............................................7
"DTC"......................................................7
"Equity Interest"..........................................7
"Existing Funded Debt".....................................7
"Euroclear"................................................7
"Exchange Act".............................................7
(ii)
PAGE
"Exchange Offer"...........................................7
"Exchange Offer Registration Statement"....................7
"Fair Market Value"........................................7
"Funded Debt"..............................................7
"GAAP".....................................................7
"Global Security"..........................................8
"Guaranty".................................................8
"Holder"...................................................8
"Incur"....................................................8
"Indenture"................................................8
"Independent Investment Banker"............................8
"Initial Purchaser"........................................8
"Initial Regulation S Securities"..........................9
"Intangible Assets"........................................9
"Interest Payment Date"....................................9
"Issue Date"...............................................9
"Issuer"...................................................9
"Issuer Request" or "Issuer Order".........................9
"Lien".....................................................9
"Maturity".................................................9
"Moody's"..................................................9
"Net Cash Proceeds"........................................9
"New York Corporate Trust Office".........................10
"Officers' Certificate"...................................10
"Opinion of Counsel"......................................10
"Opinion of Independent Counsel"..........................11
"Other Securities"........................................11
"Outstanding".............................................11
"Parent Guaranties".......................................12
"Parent Guarantor"........................................12
"Paying Agent"............................................12
"Person"..................................................12
"Place of Payment"........................................12
"Predecessor Security"....................................12
"Principal Property"......................................13
"Purchase Agreement"......................................13
"Redeemable Capital Stock"................................13
"Redeemable Stock"........................................13
"Redemption Date".........................................13
"Redemption Price"........................................13
"Reference Treasury Dealer"...............................13
"Reference Treasury Dealer Quotations"....................13
(iii)
PAGE
"Registered Securities"...................................14
"Registration Rights Agreement"...........................14
"Registration Statement"..................................14
"Regular Record Date".....................................14
"Regulation S"............................................14
"Regulation S Certificate"................................14
"Regulation S Legend".....................................14
"Regulation S Securities".................................14
"Responsible Officer".....................................14
"Restricted Period".......................................14
"Restricted Securities"...................................15
"Restricted Securities Certificate".......................15
"Restricted Securities Legend"............................15
"Restricted Subsidiary"...................................15
"Rule 144A"...............................................15
"Rule 144A Securities"....................................15
"S&P".....................................................15
"Securities Act"..........................................15
"Securities Act Legend"...................................15
"Shelf Registration Statement"............................15
"Special Purpose Funding Subsidiary"......................15
"Special Record Date".....................................15
"Stated Maturity".........................................15
"Subsidiary"..............................................16
"Successor Security"......................................16
"Temporary Cash Investments"..............................16
"Transfer Notice".........................................16
"Treasury Rate"...........................................16
"Trust Indenture Act".....................................17
"Trustee".................................................17
"Unrestricted Securities Certificate".....................17
"Unrestricted Subsidiary".................................17
"Voting Stock"............................................17
"Wholly-Owned Subsidiary".................................17
Section 102. Other Definitions............................................17
Section 103. Compliance Certificates and Opinions.........................18
Section 104. Form of Documents Delivered to Trustee.......................19
Section 105. Acts of Holders..............................................20
Section 106. Notices, etc., to the Trustee, the Issuer and
the Parent Guarantor...................................21
Section 107. Notice to Holders; Waiver....................................22
Section 108. Conflict with Trust Indenture Act............................23
(iv)
PAGE
Section 109. Effect of Headings and Table of Contents.....................23
Section 110. Successors and Assigns.......................................23
Section 111. Separability Clause..........................................23
Section 112. Benefits of Indenture........................................23
Section 113. Governing Law................................................23
Section 114. Legal Holidays...............................................24
Section 115. Independence of Covenants....................................24
Section 116. Schedules, Exhibits and Annexes..............................24
Section 117. Counterparts.................................................24
Section 118. No Personal Liability of Directors, Officers,
Incorporators, Employees and
Stockholders...........................................24
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally..............................................25
Section 202. Form of Face of Security.....................................26
Section 203. Form of Reverse of Securities................................36
Section 204. Form of Trustee's Certificate of
Authentication.........................................41
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms..............................................44
Section 302. Denominations................................................46
Section 303. Execution, Authentication, Delivery and
Dating.................................................47
Section 304. Temporary Securities.........................................49
Section 305. Global Securities............................................49
Section 306. Registration, Registration of Transfer and
Exchange Generally; Certain Transfers
and Exchanges; Securities Act Legends..................51
Section 307. Mutilated, Destroyed, Lost and Stolen
Securities.............................................56
Section 308. Payment of Interest; Interest Rights
Preserved..............................................57
Section 309. CUSIP Numbers................................................59
Section 310. Persons Deemed Owners........................................59
Section 311. Cancellation.................................................59
Section 312. Computation of Interest......................................60
(v)
PAGE
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture......................60
Section 402. Application of Trust Money...................................61
ARTICLE FIVE
REMEDIES
Section 501. Events of Default............................................62
Section 502. Acceleration of Maturity; Rescission and
Annulment..............................................64
Section 503. Collection of Debt and Suits for
Enforcement by Trustee.................................65
Section 504. Trustee May File Proofs of Claim.............................66
Section 505. Trustee May Enforce Claims without
Possession of Securities...............................67
Section 506. Application of Money Collected...............................67
Section 507. Limitation on Suits..........................................67
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest........................68
Section 509. Restoration of Rights and Remedies...........................69
Section 510. Rights and Remedies Cumulative...............................69
Section 511. Delay or Omission Not Waiver.................................69
Section 512. Control by Holders...........................................69
Section 513. Waiver of Past Defaults......................................70
Section 514. Undertaking for Costs........................................70
Section 515. Waiver of Stay, Extension or Usury Laws......................71
Section 516. Remedies Subject to Applicable Law...........................71
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee............................................71
Section 602. Notice of Defaults...........................................73
Section 603. Certain Rights of Trustee....................................73
Section 604. Trustee Not Responsible for Recitals,
Dispositions of Securities or Application
of Proceeds Thereof....................................75
Section 605. Trustee and Agents May Hold Securities;
Collections; etc.......................................75
Section 606. Money Held in Trust..........................................75
(vi)
PAGE
Section 607. Compensation and Indemnification of
Trustee and Its Prior Claim............................75
Section 608. Conflicting Interests........................................76
Section 609. Corporate Trustee Required; Eligibility......................76
Section 610. Resignation and Removal; Appointment of
Successor Trustee......................................77
Section 611. Acceptance of Appointment by Successor.......................78
Section 612. Merger, Conversion, Consolidation or
Succession to Business.................................79
Section 613. Preferential Collection of Claims Against
Issuer.................................................80
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and
Addresses of Holders...................................80
Section 702. Disclosure of Names and Addresses of
Holders................................................80
Section 703. Reports by Trustee...........................................81
Section 704. Reports by Issuer and the Parent Guarantor...................81
Section 705. Officers' Certificate with Respect to Change
in Interest Rate.......................................82
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer and Parent Guarantor May
Consolidate, etc., Only on Certain Terms...............82
Section 802. Successor Substituted........................................84
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements
without Consent of Holders.............................85
Section 902. Supplemental Indentures and Agreements
with Consent of Holders................................86
Section 903. Execution of Supplemental Indentures and
Agreements.............................................87
Section 904. Effect of Supplemental Indentures............................87
(vii)
PAGE
Section 905. Conformity with Trust Indenture Act..........................88
Section 906. Reference in Securities to Supplemental
Indentures.............................................88
Section 907. Notice of Supplemental Indentures............................88
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest................88
Section 1002. Maintenance of Office or Agency...........................88
Section 1003. Money for Security Payments to Be Held in
Trust..................................................89
Section 1004. Corporate Existence.......................................91
Section 1005. Payment of Taxes and Other Claims.........................91
Section 1006. Maintenance of Properties.................................91
Section 1007. Limitation on Liens.......................................92
Section 1008. Limitation on Sale and Leaseback
Transactions...........................................94
Section 1009. Limitation on Restricted Subsidiary Funded
Debt...................................................96
Section 1010. Limitation on Restricted Payments.........................97
Section 1011. Provision of Financial Statements.........................99
Section 1012. Statement by Officers as to Default......................100
Section 1013. Waiver of Certain Covenants..............................100
ARTICLE ELEVEN
PARENT GUARANTIES OF SECURITIES
Section 1101. Unconditional Parent Guaranties..........................101
Section 1102. Execution of Parent Guaranties...........................102
Section 1103. Form of Parent Guaranties................................102
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Issuer's Option to Effect Defeasance or
Covenant Defeasance...................................104
Section 1202. Defeasance and Discharge.................................104
Section 1203. Covenant Defeasance......................................105
Section 1204. Conditions to Defeasance or Covenant
Defeasance............................................105
Section 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions..............................108
Section 1206. Reinstatement............................................108
(viii)
PAGE
ARTICLE THIRTEEN
TAX REDEMPTION OF SECURITIES
Section 1301. Tax Redemption...........................................109
Section 1302. Applicability of Article.................................110
Section 1303. Election to Redeem; Notice to Trustee....................110
Section 1304. Notice of Tax Redemption.................................110
Section 1305. Deposit of Tax Redemption Price..........................111
Section 1306. Securities Payable on Tax Redemption Date................111
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
Section 1401. Applicability of Article.................................112
Section 1402. Election to Redeem; Notice to Trustee....................112
Section 1403. Selection by Trustee of Securities to Be
Redeemed..............................................112
Section 1404. Notice of Redemption.....................................113
Section 1405. Deposit of Redemption Price..............................114
Section 1406. Securities Payable on Redemption Date....................114
Section 1407. Securities Redeemed in Part..............................114
TESTIMONIUM, SIGNATURES AND SEALS..........................................115
ACKNOWLEDGMENTS
EXHIBIT A Form of Regulation S Security Certificate
EXHIBIT B Form of Restricted Securities Certificate
EXHIBIT C Form of Unrestricted Securities Certificate
EXHIBIT D Form of Transfer Notice
(ix)
INDENTURE, dated as of December 12, 1996, among USI AMERICAN
HOLDINGS, INC., a Delaware corporation, as issuer (the "Issuer"), U.S.
INDUSTRIES, INC., a Delaware corporation, as guarantor (the "Parent Guarantor"),
and PNC BANK, NATIONAL ASSOCIATION, as trustee (the "Trustee").
RECITALS OF THE ISSUER AND PARENT GUARANTOR
The Issuer has duly authorized the creation of an issue of 7 1/4%
Senior Notes Due December 1, 2006, Series A (the "Series A Securities" or the
"Initial Securities"), and an issue of 7 1/4% Senior Notes Due December 1, 2006,
Series B (the "Series B Securities" or the "Exchange Securities", and together
with the Initial Securities, the "Securities"), of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Issuer has duly
authorized the execution and delivery of this Indenture and the Securities.
The Parent Guarantor owns beneficially and of record 100% of the
Capital Stock of the Issuer and the Parent Guarantor will derive direct and
indirect economic benefit from the issuance of the Securities. Accordingly, the
Parent Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Parent Guaranties with respect to the Securities as
set forth in this Indenture.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Securities, when duly issued and executed by the Issuer and authenticated and
delivered hereunder, the valid obligations of the Issuer, (ii) the Parent
Guaranties, when duly issued and executed by the Parent Guarantor and delivered
hereunder, the valid obligations of the Parent Guarantor, and (iii) this
Indenture a valid agreement of the Issuer and the Parent Guarantor in accordance
with the terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) 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;
(e) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or Articles
refer to this Indenture unless otherwise so indicated.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Global Security, Euroclear and Cedel, in
each case to the extent applicable to such transaction and as in effect from
time to time.
2
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of all or substantially
all of the properties and assets of any division or line of business of such
Person or any other properties or assets of such Person other than in the
ordinary course of business (including by way of a sale-and-leaseback and
including the sale or other transfer of any of the Capital Stock of any
Subsidiary of such Person), in a single transaction or through a series of
related transactions. For the purposes of this definition, the term "Asset Sale"
shall not include (x) any transfer of properties and assets (A) that is governed
by Section 801(a) or (B) that is from the Issuer to any Subsidiary or from any
Subsidiary to the Issuer or another Subsidiary of the Issuer or (y) the transfer
of properties and assets (other than in the ordinary course of business) in any
given fiscal year if the aggregate Fair Market Value (as determined in good
faith by the Board of Directors of the Issuer) of all such properties and assets
transferred (other than in the ordinary course of business) in such fiscal year
is less than $1,000,000, it being understood that if such aggregate Fair Market
Value exceeds $1,000,000, the entire aggregate Fair Market Value shall be
included.
"Attributable Debt" means, as to any particular lease under which either
the Issuer or any Restricted Subsidiary is at any time liable as lessee and at
any date as of which the amount thereof is to be determined, the total net
obligations of the lessee for rental payments during the remaining term of the
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended) discounted from the respective due dates
thereof to such date at a rate per annum equivalent to the interest rate
inherent in such lease (as determined in good faith by the Board of Directors of
the Issuer), compounded semiannually.
"Bankruptcy Law" means title 11, United States Bankruptcy Code of 1978, as
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means the board of directors of the Issuer or the
Parent Guarantor, as the case may be, or any duly authorized committee of such
board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Issuer or the Parent Guarantor, as the case may
be, to have been duly adopted by its Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee. A
Board Resolution shall be conclusive evidence of action by such Board of
Directors.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions or trust companies in The City
of
3
New York or the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law, regulation or executive order to
close.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Debt arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on the face of
a balance sheet of such Person in accordance with GAAP; for the purposes hereof
the amount of such obligations shall be the capitalized amount reflected on such
balance sheet.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Cash Equivalents" means (i) any evidence of Debt, maturing not more than
six months after the date of acquisition, issued by the United States of
America, or an instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of America, (ii)
any certificate of deposit, time deposit, money market account or bankers'
acceptance, maturing not more than six months after the date of acquisition,
issued by any commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits
of not less than $500,000,000, whose debt has 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, or (iii) commercial paper, maturing not more
than three months after the date of acquisition, issued by any corporation
(other than an Affiliate of the Issuer) organized and existing under the laws of
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.
"Cedel" means Cedel Bank, S.A. (or any successor securities clearing
agency).
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker which would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities.
4
"Comparable Treasury Price" means, with respect to any Redemption Date (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or (ii) if such release (or any successor release) is
not published or does not contain such prices on such Business Day (A) the
average of the Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate net income (or loss) of such Person and its Subsidiaries for such
period, before extraordinary items and the cumulative effect of a change in
accounting principles (as each such term is defined under GAAP) of such Person
and its Subsidiaries, on a consolidated basis, determined in accordance with
GAAP adjusted by excluding (i) any net gains or losses in respect of Asset
Sales; (ii) the net income or loss of any Person acquired by such Person or any
Subsidiary of such Person in a pooling-of-interests transaction for any period
prior to the date of such transaction; (iii) any gains or losses from currency
exchange transactions; (iv) any gains or losses realized upon the termination of
any employee pension benefit plan; (v) any gains or losses realized upon the
refinancing of any of such Person's Debt; (vi) any settlements or judgments with
respect to any litigation not in the ordinary course of business; (vii) any
gains or losses arising from the destruction of property due to fire or other
casualty; (viii) any gains or losses arising from the revaluation of property or
assets; (ix) the net income (or loss) accounted for by the equity method of
accounting, except for dividends or other distributions actually received by
such Person or its Subsidiaries; and (x) the net income of any Subsidiary of
such Person to the extent that such net income has any restrictions on making
dividends or other distributions to such Person, it being understood that the
net income of any Subsidiary incorporated or otherwise organized in a
jurisdiction outside of the United States shall not be excluded to the extent
that annual dividends to such Person are permitted pursuant to applicable law,
but shall be net of any withholding requirements pursuant to or reserves
established in connection with the restrictions of such applicable law.
"Consolidated Net Tangible Assets" means, at any date, the total amount of
assets appearing on the most recent Consolidated balance sheet of the Parent
Guarantor and its Subsidiaries, prepared in accordance with GAAP, less (i) all
current liabilities (due within one year) as shown on such balance sheet
(excluding current maturities of long-term indebtedness and intercompany items),
(ii) applicable depreciation, amortization and
5
other valuation reserves not already reflected in such total amount of assets
and (iii) Intangible Assets and liabilities relating thereto.
"Consolidation" means, with respect to any Person, the consolidation of the
accounts of such Person and each of its Subsidiaries if and to the extent the
accounts of such Person and each of its Subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an Affiliate
thereof at which at any particular time the corporate trust business for the
purposes of this Indenture shall be principally administered, which office at
the date of execution of this Indenture is located at 27th Floor, One Oliver
Plaza, 210 Sixth Avenue, Pittsburgh, PA 15222-2602, Attn.: Corporate Trust Dept.
"Credit Agreement" means the Credit Agreement, dated as of December 12,
1996, among USI American Holdings, Inc., USI Funding, Inc., as borrowers, U.S.
Industries, Inc. as guarantor, Bank of America Illinois, as Issuing Bank and
Swingline Bank, the additional financial institutions set forth therein, as
lenders, Bank of America National Trust and Savings Association, as Agent, and
BA Securities, Inc., as Arranger, as such agreement may be amended from time to
time (or any one or more renewals, extension, refinancings, or refundings
thereof).
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, (iv) every obligation of such Person issued or assumed
as the deferred purchase price of property or services, if and to the extent
that such obligation would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business), (v) every
Capital Lease Obligation of such Person, (vi) the maximum fixed redemption or
repurchase price of Redeemable Stock of such Person at the time of determination
and (vii) every obligation of the type referred to in clauses (i) through (vi)
of another Person and all Debt of another Person the payment of which, in either
case, such Person has Guaranteed or for which such Person is responsible or
liable, directly or indirectly, as obligor, Guarantor or otherwise.
"Default" means any event which is, or after notice or passage of any time
or both would be, an Event of Default.
6
"Depositary" means, with respect to the Securities issued in the form of
one or more Global Securities, DTC, its nominees and successors, or another
Person designated as Depositary by the Issuer, which must be a clearing agency
registered under the Exchange Act.
"DTC" means The Depository Trust Company, a New York corporation.
"Equity Interest" means Capital Stock or warrants, options or other rights
to acquire Capital Stock (but excluding any debt security which is convertible
into, or exchangeable for, Capital Stock).
"Existing Funded Debt" means all Funded Debt (other than Funded Debt
outstanding pursuant to the Credit Agreement) existing on the date of this
Indenture.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor statute.
"Exchange Offer" means the exchange offer by the Issuer of Exchange
Securities for Series A Securities to be effected pursuant to Section 2.1 of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or property, the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy.
"Funded Debt" means Debt that by its terms (i) matures more than one year
from the date of original issuance or creation or (ii) matures within one year
from such date but is renewable or extendible at the option of any obligor to a
date more than one year from such date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession
in the United States, from time to time.
7
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Guaranty" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing any Debt of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt of any Person, to create, issue,
incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise
become, directly or indirectly, liable in respect of such Debt or the recording,
as required pursuant to GAAP or otherwise, of any such Debt on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring" 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
becoming Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed (including all
annexes thereto) and as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and
any such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Issuer.
"Initial Purchaser" means BA Securities, Inc.
8
"Initial Regulation S Securities" means the Securities sold by the Initial
Purchaser in the initial offering contemplated by the Purchase Agreement in
reliance on Regulation S.
"Intangible Assets" means the value (net of any applicable reserves), as
shown on or reflected in such balance sheet, of: (A) all trade names,
trademarks, licenses, patents, copyrights, service marks, goodwill and other
like intangibles; and (B) unamortized debt discount and expense, less
unamortized premium.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Issue Date" means December 12, 1996.
"Issuer" means USI American Holdings, Inc., a corporation incorporated
under the laws of Delaware, until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor corporation.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of the Issuer by any one of its Chairman of the Board, its Vice
Chairman, its President, its Chief Executive Officer, its Chief Operating
Officer, its Chief Financial Officer or a Vice President, and by any one of its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement, encumbrance, preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including, without limitation,
any conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Maturity" means, when used with respect to any Security, the date on which
the principal of such Securities becomes due and payable as therein provided or
as provided in this Indenture, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Net Cash Proceeds" means (a) with respect to any Asset Sale by any Person,
the proceeds thereof in the form of cash or Temporary Cash Investments including
payments in respect of deferred payment obligations when received in the form
9
of, or stock or other assets when disposed for, cash or Temporary Cash
Investments (except to the extent that such obligations are financed or sold
with recourse to the Parent Guarantor, the Issuer or any Restricted Subsidiary)
net of (i) brokerage commissions and other actual fees and expenses (including
fees and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire Debt where payment of such Debt is secured by the assets
or properties which are the subject of such Asset Sale, (iv) amounts required to
be paid to any Person (other than the Parent Guarantor, Issuer or any Subsidiary
of the Parent Guarantor or Issuer) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by the
Issuer or Restricted Subsidiary, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and retained
by the Issuer or Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee and (b) with
respect to any issuance or sale of Capital Stock or options, warrants or rights
to purchase Capital Stock, or Debt or Capital Stock that have been converted
into or exchanged for Capital Stock, the proceeds of such issuance or sale in
the form of cash or Temporary Cash Investments, including payments in respect of
deferred payment obligations when received in the form of, or stock or other
assets when disposed for, cash or Temporary Cash Investments (except to the
extent that such obligations are financed or sold with recourse to the Parent
Guarantor, the Issuer or any Restricted Subsidiary), net of attorneys' fees,
accountants' fees and brokerage, consultation, underwriting and other fees and
expenses actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
"New York Corporate Trust Office" means The Depository Trust Company at 55
Water Street, New York, NY 10041-0099.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Vice Chairman, the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Issuer or the Parent Guarantor, as the case may be, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Issuer, the Parent Guarantor or the Trustee, unless an Opinion of
Independent Counsel is required pursuant to the terms of this Indenture, and who
shall be acceptable to the Trustee.
10
"Opinion of Independent Counsel" means a written opinion of counsel, who
may be regular outside counsel for the Issuer, but which is issued by a Person
who is not an employee or consultant (other than non-employee legal counsel) of
the Issuer or the Parent Guarantor, and who shall be reasonably acceptable to
the Trustee.
"Other Securities" means the Securities sold by the Initial Purchaser in
the initial offering contemplated by the Purchase Agreement in reliance on an
exemption from the registration requirements of the Securities Act other than
Rule 144A and Regulation S.
"Outstanding" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, payment for which money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Issuer) in trust or set aside and segregated
in trust by the Issuer (if the Issuer shall act as the Paying Agent) for
the Holders of such Securities;
(c) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer or the Parent Guarantor) in trust or set aside and
segregated in trust by the Issuer or the Parent Guarantor (if the Issuer or
the Parent Guarantor shall act as its own Paying Agent) for the Holders of
such Securities; provided, however, that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(d) Securities, except to the extent provided in Sections 1202 and
1203, with respect to which the Issuer has effected defeasance or covenant
defeasance as provided in Article Twelve; and
(e) Securities which have been paid pursuant to Section 308 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee and the
Issuer proof reasonably satisfactory to each of them that such Securities
are held by a bona fide purchaser in whose hands the Securities are valid
obligations of the Issuer;
11
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Issuer, the Parent Guarantor or any other obligor upon the
Securities or any Affiliate of the Issuer, the Parent Guarantor or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the reasonable
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Issuer, the Parent
Guarantor or any other obligor upon the Securities or any Affiliate of the
Issuer, the Parent Guarantor or such other obligor.
"Parent Guaranties" means the unconditional guaranty by U.S. Industries,
Inc. of the due and punctual payment of principal or premium, if any, of, and
interest on, the Securities, as provided pursuant to Article Eleven.
"Parent Guarantor" means U.S. Industries, Inc., a Delaware corporation,
until a successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Parent Guarantor" shall mean such
successor corporation.
"Paying Agent" means any Person (including the Issuer or the Parent
Guarantor) authorized by the Issuer to pay the principal or premium, if any, of,
or interest on, any Securities on behalf of the Issuer.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Securities, the
place or places where the principal of and any premium, if any, and interest on
the Securities are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For purposes of this definition, any Security authenticated
and delivered under Section 307 in exchange for a mutilated Security or in lieu
of a lost, destroyed or stolen Security shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Security.
12
"Principal Property" means any real property (including related fixtures),
plant or equipment owned or leased by the Issuer or any Restricted Subsidiary,
other than real property, plant or equipment that, in the good faith
determination of the Board of Directors of the Issuer (whose determination shall
be conclusive and evidenced by a Board Resolution), is not of material
importance to the respective businesses conducted by the Issuer or any
Restricted Subsidiary as of the date of such determination; provided, however,
that, unless otherwise specified by the Board of Directors of the Issuer, any
real property (including related fixtures), plant or equipment with a Fair
Market Value of less than $5,000,000 (as determined in good faith by the Board
of Directors of the Issuer) shall not be a Principal Property.
"Purchase Agreement" means the Purchase Agreement dated as of December 6,
1996, among the Issuer, the Parent Guarantor and the Initial Purchaser, as such
agreement may be amended from time to time.
"Redeemable Capital Stock" means any Equity Interest which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable before the stated maturity of the Notes), or upon the happening of
any event, matures or is mandatorily redeemable, in whole or in part, prior to
the stated maturity of the Notes.
"Redeemable Stock" of any Person means any equity security of such Person
that by its terms or otherwise is required to be redeemed for cash prior to the
final Stated Maturity of the Securities or is redeemable for cash at the option
of the holder thereof at any time prior to the final Stated Maturity of the
Securities.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which such Security is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means BA Securities, Inc. and its successors
and/or such other primary U.S. Government securities dealers in New York City (a
"Primary Treasury Dealer") as shall be designated by the Issuer from time to
time, in each case provided that such entity continues to be a Primary Treasury
Dealer .
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
13
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of December 12, 1996, among the Issuer, the Parent Guarantor and the
Initial Purchaser, as such agreement may be amended from time to time.
"Registration Statement" means an Exchange Offer Registration Statement or
a Shelf Registration Statement.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the May 15 or November 15 (whether or not a Business Day) next preceding
such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the form
set forth in Annex A hereto.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Security set forth in Section 202 to be placed
upon a Regulation S Global Security.
"Regulation S Securities" means all Securities required pursuant to Section
306(c) to bear a Regulation S Legend. Such term includes the Regulation S Global
Security.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or the New York Corporate Trust
Office or any agent of the Trustee appointed hereunder, including any vice
president, assistant vice president, assistant secretary, or any other officer
or assistant officer of the Trustee or any agent of the Trustee appointed
hereunder to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Period" means the period of 41 consecutive days beginning on
and including the later of (i) the day on which Securities are first offered to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the day on which the
14
closing of the offering of Securities pursuant to the Purchase Agreement occurs.
"Restricted Securities" means all Securities required pursuant to Section
306(c) to bear a Restricted Securities Legend. Such term includes the Restricted
Global Note.
"Restricted Securities Certificate" means a certificate substantially in
the form set forth in Annex B hereto.
"Restricted Securities Legend" means a legend substantially in the form of
the legend required in the form of Security set forth in Section 202 to be
placed upon a Restricted Security.
"Restricted Subsidiary" means each Subsidiary of the Issuer other than
Unrestricted Subsidiaries.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities purchased by the Initial
Purchasers from the Issuer pursuant to the Purchase Agreement, other than the
Other Securities and the Initial Regulation S Securities.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., and its successors.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor statute.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Special Purpose Funding Subsidiary" means a direct Wholly-Owned Subsidiary
of the Issuer (i) that serves as a cash management company for the Issuer and
its Subsidiaries and has no other material operations or business, (ii) that for
every transfer of funds to it, records a corresponding liability on its books
and records to the transferor thereof, and (iii) whose assets do not materially
exceed its liabilities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 308.
15
"Stated Maturity" when used with respect to any Security or any installment
of interest thereon, means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of interest, as the
case may be, is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof, (ii) a partnership of which such Person, or
one or more Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, is the general partner, has at
least a majority ownership and has the power to direct the policies, management
and affairs thereof or (iii) any other Person (other than a corporation or a
partnership) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Successor Security" of any particular Security means every Security issued
after, and evidencing all or a portion of the same Debt as that evidenced by,
such particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Temporary Cash Investments" means (i) any evidence of Debt issued by the
United States of America, or an instrumentality or agency thereof and Guaranteed
fully as to principal, premium, if any, and interest by the United States of
America, maturing not more than one year after the date of acquisition, (ii) any
certificate of deposit, maturing not more than one year after the date of
acquisition, issued by, or time deposit of, a commercial banking institution
that is a member of the Federal Reserve System and that has combined capital and
surplus and undivided profits of not less than $500,000,000, whose Debt has 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, (iii)
commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than the Parent Guarantor, the Issuer or a
Subsidiary of the Issuer or the Parent Guarantor) organized and existing under
the laws of the United States of America with a rating, at the time as of which
any investment therein made, of "P-1" (or higher) according to Moody's or "A-1"
(or higher) according to S&P or (iv) any money market deposit accounts issued or
offered by a domestic commercial bank having capital and surplus in excess of
$500,000,000.
16
"Transfer Notice" means a certificate substantially in the form set forth
in Annex D hereto.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
for such Redemption Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, or
any successor statute.
"Trustee" means, except as set forth in Section 1205, the Person named as
the "Trustee" in the first paragraph of this Indenture, 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 Securities Certificate" means a certificate substantially in
the form set forth in Annex C hereto.
"Unrestricted Subsidiary" means any Subsidiary of the Issuer that (i) is
organized under the laws of a jurisdiction other than a jurisdiction in the
United States of America or (ii) does not constitute a "significant subsidiary"
of the Parent Guarantor within the meaning of Rule 1-02(w) of Regulation S-X
promulgated under the Exchange Act and any successor provision thereto.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of such Person
all the outstanding Capital Stock or other ownership interests of which (other
than directors' qualifying shares) shall at the time be owned by such Person or
by one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
Section 102. Other Definitions.
Term Defined in Section
- ---- ------------------
"Additional Amounts" 301
"Act" 105
"covenant defeasance" 1203
"Debt Basket" 1009
17
"Defaulted Interest" 308
"defeasance" 1202
"Defeased Securities" 1201
"Event of Default" 501
"Exchange Securities" Recitals
"Initial Securities" Recitals
"Leaseback Basket" 1008
"Lien Basket" 1007
"Other Jurisdiction" 301
"primary obligor" 101
"Regulation S Global Security" 201
"Required Filing Dates" 1011
"Restricted Global Security" 201
"Restricted Payment" 1010
"Securities" Recitals
"Security Register" 306
"Security Registrar" 306
"Series A Securities" Recitals
"Series B Securities" Recitals
"Special Payment Date" 308
"Surviving Entity" 801
"Surviving Guarantor Entity" 801
"Tax Redemption" 1301
"Tax Redemption Date" 1301
"Tax Redemption Price" 1301
"U.S. Government Obligations" 1204
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Issuer or the Parent
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Issuer and the Parent Guarantor (if applicable) and any other
obligor on the Securities (if applicable) shall furnish to the Trustee an
Officers' Certificate in form and substance reasonably acceptable to the Trustee
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition precedent)
relating to the proposed action have been complied with, and an Opinion of
Counsel in form and substance reasonably acceptable to the Trustee stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such certificates or opinions is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
18
Every certificate or Opinion of Counsel or Opinion of Independent Counsel with
respect to compliance with a condition or covenant provided for in this
Indenture shall comply with the requirements of the Trust Indenture Act.
Every certificate or Opinion of Counsel or Opinion of Independent
Counsel with respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each individual signing such certificate
or individual or firm signing such opinion has read such covenant or
condition and the definitions herein relating thereto;
(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 each such individual
or such firm, he or it has made such examination or investigation as is
necessary to enable him or it 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, in the opinion of each such
individual or such firm, such condition or covenant has been complied
with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer, the Parent
Guarantor or other obligor on the Securities may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Issuer, the Parent Guarantor or other obligor on the Securities stating
that the information with respect to such factual matters is in the possession
of the Issuer, the
19
Parent Guarantor or other obligor on the Securities, unless such officer or
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Issuer or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Any certificate or opinion of an officer of the Issuer, the Parent
Guarantor or other obligor on the Securities may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of, or representations by,
an accountant or firm of accountants in the employ of the Issuer and the Parent
Guarantor, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the accounting matters upon which his certificate or opinion may be based are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent with respect to the Issuer and the Parent Guarantor.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer or the
Parent Guarantor. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee, the
Issuer and the Parent Guarantor, if made in the manner provided in this Section
105.
(b) The ownership of Securities shall be proved by the Security
Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the
20
same Security or the Holder of every Security issued upon the transfer thereof
or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Issuer,
the Parent Guarantor or any other obligor of the Securities in reliance thereon,
whether or not notation of such action is made upon such Security.
(d) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate of affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Issuer shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Issuer may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Issuer shall have no obligation to do so. Notwithstanding Trust
Indenture Act Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such first solicitation is
completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for purposes of determining
whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the
Securities then Outstanding shall be computed as of such record date; provided,
however, that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
21
Section 106. Notices, etc., to the Trustee, the Issuer and the Parent
Guarantor.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer or the Parent
Guarantor or any other obligor on the Securities shall be sufficient for
every purpose (except as provided in Section 501(c)) hereunder if in
writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or at any other
address previously furnished in writing to the Holders or the Issuer, the
Parent Guarantor or any other obligor on the Securities by the Trustee; or
(b) the Issuer or the Parent Guarantor by the Trustee or any
Holder shall be sufficient for every purpose (except as provided in
Section 501(c)) hereunder if in writing and mailed, first-class postage
prepaid, or delivered by recognized overnight courier, to the Issuer or
the Parent Guarantor addressed to it c/o U.S. Industries, Inc., 101 Wood
Avenue South, Iselin, New Jersey 08830, or at any other address previously
furnished in writing to the Trustee by the Issuer or the Parent Guarantor.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any
22
provision of this Indenture, then any method of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be. Until such time as this Indenture shall be
qualified under the Trust Indenture Act, this Indenture, the Issuer, the Parent
Guarantor and the Trustee shall be deemed for all purposes hereof to be subject
to and governed by the Trust Indenture Act to the same extent as would be the
case if this Indenture were so qualified on the date hereof.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer and the
Parent Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent or the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
THIS INDENTURE, THE SECURITIES AND THE PARENT GUARANTIES SHALL BE
GOVERNED BY, AND CONSTRUED IN
23
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Maturity, or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or at the
Maturity or Stated Maturity and no interest shall accrue with respect to such
payment for the period from and after such Interest Payment Date, Redemption
Date, Maturity or Stated Maturity, as the case may be, to the next succeeding
Business Day.
Section 115. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 116. Schedules, Exhibits and Annexes.
All schedules, exhibits and annexes attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
Section 117. Counterparts.
This Indenture may be executed with counterpart signature pages or
in any number of counterparts, each of which counterparts shall be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 118. No Personal Liability of Directors, Officers, Incorporators,
Employees and Stockholders.
No recourse under or upon any obligation, covenant or agreement of
this Indenture or any indenture supplemental hereto or of any Security or Parent
Guaranties, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer, director or
employee, as such, past, present or future, of the Issuer or the Parent
Guarantor or any of their respective Affiliates or of any successor
24
corporation thereof, either directly or through the Issuer, the Parent Guarantor
or any of their respective Affiliates or any such successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers, directors or employees,
as such, of the Issuer or the Parent Guarantor or any of their respective
Affiliates or of any successor corporation thereof, or any of them, because of
the creation of the Debt hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or the Parent Guaranties or implied therefrom; and that any and
all such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director or employee, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or the Parent Guaranties or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities and the Parent Guaranties.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificate of authentication
thereon shall be in substantially the forms set forth in this Article Two, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted hereby and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities and the Parent Guaranties to be endorsed
thereon shall be printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
25
Upon their original issuance, Rule 144A Securities shall be issued in the form
of one or more Global Securities registered in the name of DTC, as Depositary,
or its nominee and deposited with the Trustee, as custodian for DTC, for credit
by DTC to the respective accounts of beneficial owners of the Securities
represented thereby (or such other accounts as they may direct). Such Global
Securities, together with their Successor Securities which are Global Securities
other than the Regulation S Global Security, are collectively herein called the
"Restricted Global Security".
Upon their original issuance, Initial Regulation S Securities shall
be issued in the form of one or more Global Securities registered in the name of
DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian
for DTC, for credit by DTC to the respective accounts of beneficial owners of
the Securities represented thereby (or such other accounts as they may direct),
provided that upon such deposit all such Securities shall be credited to or
through accounts maintained at DTC by or on behalf of Euroclear or Cedel. Such
Global Securities, together with their Successor Securities which are Global
Securities other than the Restricted Global Security, are collectively herein
called the "Regulation S Global Security".
Upon their original issuance, Other Securities shall not be issued
in the form of a Global Security or in any other form intended to facilitate
book-entry trading in beneficial interests in such Securities.
The terms and provisions contained in the form of the Securities set
forth in Section 202 shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Issuer and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Section 202. Form of Face of Security.
(a) The form of the face of any Initial Securities authenticated and
delivered hereunder shall be substantially as follows:
[IF THE SECURITY IS A RESTRICTED SECURITY, THEN INSERT -- THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR FOREIGN SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE
RELYING ON
26
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
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 THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER (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, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING
OF RULE 501(A)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT IS 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 ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE PARENT GUARANTOR'S, THE
ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSES C, D, E AND F TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (ii) IN THE CASE OF THE FOREGOING CLAUSE (E), TO REQUIRE THAT A TRANSFER
NOTICE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE ISSUER, THE PARENT
GUARANTOR AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[IF THE SECURITY IS A REGULATION S SECURITY, THEN INSERT -- THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
27
OFFERED, SOLD, OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY U.S. PERSON, UNLESS THIS SECURITY IS REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.]
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND
NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND DTC IS TO BE THE
DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE 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.]
USI AMERICAN HOLDINGS, INC.
7 1/4% SENIOR NOTE DUE DECEMBER 1, 2006, SERIES A
GUARANTEED AS TO PAYMENT OF PRINCIPAL
AND INTEREST BY U.S. INDUSTRIES, INC.
[IF RESTRICTED GLOBAL SECURITY -- CUSIP Number [ ]]
[IF REGULATION S GLOBAL SECURITY -- CUSIP Number [ ]]
[IF NON-GLOBAL SECURITY -- CUSIP Number [ ]]
No. [ ] $_______________
28
7 1/4% SENIOR NOTE DUE DECEMBER 1, 2006, SERIES A
GUARANTEED AS TO PAYMENT OF PRINCIPAL
AND INTEREST BY U.S. INDUSTRIES, INC.
CUSIP NO. ______________
No. __________ $_______________
USI American Holdings, Inc., a Delaware corporation (the "Issuer",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _______________ or
registered assigns, the principal sum of $_______________ United States dollars
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- or such other principal
amount (which, when taken together with the principal amounts of all other
Outstanding Securities, shall not exceed $125,000,000 in the aggregate at any
one time) as may be set forth in the records of the Trustee hereinafter referred
to in accordance with the Indenture], on December 1, 2006, at the office or
agency of the Issuer referred to below, and to pay interest thereon from
December 12, 1996, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually on June 1 and December
1 in each year, commencing June 1, 1997 at the rate of 7 1/4% per annum, subject
to adjustments as described in the second following paragraph, in United States
dollars, until the principal or premium, if any, hereof is paid or duly provided
for. Interest shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
The Holder of this Series A Security is entitled to the benefits of
the Registration Rights Agreement dated as of December 12, 1996, among the
Issuer, the Parent Guarantor and the Initial Purchaser, pursuant to which,
subject to the terms and conditions thereof, the Issuer and the Parent Guarantor
are obligated to consummate the Exchange Offer pursuant to which the Holder of
this Security shall have the right to exchange this Security for 7 1/4% Senior
Notes Due December 1, 2006, Series B (the "Series B Securities") in like
principal amount as provided therein. The Series A Securities and the Series B
Securities are together referred to as the "Securities". The Series A Securities
rank pari passu in right of payment with the Series B Securities.
If (i) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 45th day following the date of original issue
of the Series A Securities, (ii) the Exchange Offer Registration Statement is
not declared effective on or prior to the 135th day following the date of
original issue of the Series A Securities, (iii) neither the Exchange Offer is
consummated nor the Shelf Registration Statement is declared effective on or
prior to the 165th day following the date of original issue of the Series A
Securities, or (iv) a Shelf Registration Statement is required to be filed
because
29
of the request of the Initial Purchaser, 45 days following the request by the
Initial Purchaser that the Issuer file the Shelf Registration Statement (or 90
days in the event that the Shelf Registration Statement is reviewed by the
Commission), then the interest rate borne by this Security (except in the case
of clause (iv), in which case only the Series A Securities which have not been
exchanged in the Exchange Offer) shall be increased by 0.50% per annum. Upon (w)
the filing of the Exchange Offer Registration Statement in the case of clause
(i) above, (x) the effectiveness of the Exchange Offer Registration Statement in
the case of clause (ii) above, (y) the date of the consummation of the Exchange
Offer or the effectiveness of the Shelf Registration Statement in the case of
clause (iii) above, or (z) the effective date of the Shelf Registration
Statement in the case of clause (iv) above, the interest rate on the Securities
from the date of such filing, effectiveness or the date of such consummation or
effectiveness, as the case may be, will be reduced to the original interest rate
on the Securities; provided, however, that, if after any such reduction in
interest rate a different event specified in clause (i), (ii), (iii) or (iv)
above occurs, the interest rate shall again be increased pursuant to the
foregoing provisions.
Any amount of interest on this Security which is overdue shall bear
interest (to the extent that payment thereof shall be legally enforceable) at
the rate per annum then
borne by this Security from the date such amount is due to the day it is paid or
made available for payment, and such overdue interest shall be payable on
demand.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the May 15 or November 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date; provided, however, that any
accrued and unpaid interest (including increased and additional interest as
aforesaid) on this Security upon the issuance of a Series B Security in exchange
for this Security shall cease to be payable to the Holder hereof and shall be
payable on the next Interest Payment Date for such Series B Security to the
Holder thereof on the related Regular Record Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date, and may either be paid to the Person
in whose name this Security (or any Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
30
The principal or premium, if any, of, and interest on, and the Tax
Redemption Price and Additional Amounts with respect to, this Security shall be
payable in immediately available funds and, exchange or transfer of this
Security, will be made at the office or agency of the Issuer in The City of New
York maintained for that purpose (which initially will be the New York Corporate
Trust Office of the Trustee), or at such other office or agency as may be
maintained for such purpose, 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; provided, however, that payment of interest may be made at the
option of the Issuer by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
The Securities are subject to redemption at the election of the
Issuer upon not less than 30 days' notice by mail, in whole or in part but only
in multiples of $1,000, at any one or more times, at a Redemption Price equal to
the greater of (i) 100% of the principal amount of the Securities to be
redeemed, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 10 basis points, plus, in each case, accrued but
unpaid interest to the Redemption Date. The Securities are also subject to
redemption at the election of the Issuer at the Tax Redemption Price under the
circumstances set forth in Article Thirteen of the Indenture. On and after the
Redemption Date, interest will cease to accrue on the Securities or portions of
Securities called for redemption on such Redemption Date. The Securities shall
not have the benefit of any sinking fund obligations.
Additional Amounts in respect of principal, premium, if any, and
interest, may be paid by the Parent Guarantor under circumstances relating to
tax withholding by certain foreign jurisdictions as set forth in Section 301 of
the Indenture.
This Security is entitled to the benefits of the Parent Guaranties
made in favor of the Holders, which Parent Guaranties are subject to release.
Reference is hereby made to Article Eleven of the Indenture for a statement of
the respective rights, limitations of rights, duties and obligations under the
Parent Guaranties. Each Holder, by holding this Security, agrees to all terms
and provisions of the Parent Guaranties.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature
of an authorized signer, this Security shall
31
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
Dated: _______________ USI AMERICAN HOLDINGS, INC.
By:___________________________________
[SEAL] Name:
Title:
Attest:
_____________________________________
Authorized Officer
(b) The form of the face of any Series B Securities authenticated
and delivered hereunder shall be substantially as follows:
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND
NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND DTC IS TO BE THE
DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY SUCH CERTIFICATE 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
32
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
USI AMERICAN HOLDINGS, INC.
7 1/4% SENIOR NOTE DUE DECEMBER 1, 2006, SERIES B
GUARANTEED AS TO PAYMENT OF PRINCIPAL AND
INTEREST BY U.S. INDUSTRIES, INC.
[IF RULE 144A SECURITY -- CUSIP Number [ ]]
[IF REGULATION S GLOBAL SECURITY -- CUSIP Number [ ]]
[IF NON-GLOBAL SECURITY -- CUSIP Number [ ]]
No. [ ] $_______________
USI American Holdings, Inc., a Delaware corporation (the "Issuer",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _______________ or
registered assigns, the principal sum of $_______________ United States dollars
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- or such other principal
amount (which, when taken together with the principal amounts of all other
Outstanding Securities, shall not exceed $125,000,000 in the aggregate at any
one time) as may be set forth in the records of the Trustee hereinafter referred
to in accordance with the Indenture], on December 1, 2006, at the office or
agency of the Issuer referred to below, and to pay interest thereon from
December 12, 1996 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually on June 1 and December
1 in each year, commencing June 1, 1997 at the rate of 7 1/4% per annum, in
United States dollars, until the principal hereof is paid or duly provided for;
provided, however, that to the extent interest has not been paid or duly
provided for with respect to the Series A Security exchanged for this Series B
Security, interest on this Series B Security shall accrue from the most recent
Interest Payment Date to which interest on the Series A Security which was
exchanged for this Series B Security has been paid or duly provided for.
Interest shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
This Series B Security was issued pursuant to the Exchange Offer
pursuant to which 7 1/4% Senior Notes Due December 1, 2006, Series A (the
"Series A Securities") in like principal amount were exchanged for Series B
Securities. The Series B Securities rank pari passu in right of payment with the
Series A Securities.
33
Any amount of interest on this Security which is overdue shall bear interest (to
the extent that payment thereof shall be legally enforceable) at the rate per
annum then
borne by this Security from the date such amount is due to the day it is paid or
made available for payment, and such overdue interest shall be payable on
demand.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the May 15 or November 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the interest rate borne by the Series B Securities, to the extent lawful,
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date, and may either be paid to the Person in whose name this Security (or any
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
The principal or premium, if any, of, and interest on, and the Tax
Redemption Price and Additional Amounts, with respect to this Security shall be
payable in immediately available funds and, exchange or transfer of this
Security, will be made at the office or agency of the Issuer in The City of New
York maintained for that purpose (which initially will be the New York Corporate
Trust Office of the Trustee), or at such other office or agency as may be
maintained for such purpose, 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; provided, however, that payment of interest may be made at the
option of the Issuer by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
The Securities are subject to redemption at the election of the
Issuer upon not less than 30 days' notice by mail, in whole or in part but only
in multiples of $1,000, at any one or more times, at a Redemption Price equal to
the greater of (i) 100% of the principal amount of the Securities to be
redeemed, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 10 basis points, plus, in each case, accrued but
unpaid interest to the Redemption Date. The Securities are also subject to
redemption at the election of the Issuer at the Tax Redemption Price under the
circumstances set forth in
34
Article Thirteen of the Indenture. On and after the Redemption Date, interest
will cease to accrue on the Securities or portions of Securities called for
redemption on such Redemption Date. The Securities shall not have the benefit of
any sinking fund obligations.
Additional Amounts in respect of principal, premium, if any, and
interest, may be paid by the Parent Guarantor under circumstances relating to
tax withholding by certain foreign jurisdictions, as set forth in Section 301 of
the Indenture.
This Security is entitled to the benefits of the Parent Guaranties
made in favor of the Holders, which Parent Guaranties are subject to release.
Reference is hereby made to Article Eleven of the Indenture for a statement of
the respective rights, limitations of rights, duties and obligations under the
Parent Guaranties. Each Holder, by holding this Security, agrees to all terms
and provisions of the Parent Guaranties.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature
of an authorized signer, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
Dated: _______________ USI AMERICAN HOLDINGS, INC.
By:_____________________________________
[SEAL] Name:
Title:
Attest:
___________________________________
Authorized Officer
35
Section 203. Form of Reverse of Securities.
(a) The form of the reverse of the Series A Securities shall be
substantially as follows:
USI AMERICAN HOLDINGS, INC.
7 1/4% SENIOR NOTE DUE DECEMBER 1, 2006, SERIES A
GUARANTEED AS TO PAYMENT OF PRINCIPAL
AND INTEREST BY U.S. INDUSTRIES, INC.
This Security is one of a duly authorized issue of Securities of the
Issuer designated as its 7 1/4% Senior Notes Due December 1, 2006 (the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $125,000,000, issued under and
subject to the terms of an indenture (the "Indenture") dated as of December 12,
1996 among the Issuer, U.S. Industries, Inc. (the "Parent Guarantor", which term
includes any successor corporation under the Indenture) and PNC Bank, National
Association, as trustee (the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Issuer, the Parent Guarantor, the Trustee and the Holders of the Securities, and
of the terms upon which the Securities, with the Parent Guaranties endorsed
thereon, are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Debt on the Securities, and (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the principal
amount and premium, if any, of all the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the Parent Guarantor and the rights of the Holders of the Securities
under the Indenture at any time by the Issuer, the Parent Guarantor and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on
36
behalf of the Holders of all the Securities, to waive compliance by the Issuer
and the Parent Guarantor with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
the Parent Guarantor or any other obligor on the Securities (if the Parent
Guarantor or such other obligor is obligated to make payments in respect of the
Securities), which is absolute and unconditional, to pay the principal or
premium, if any, of, and interest on, and Tax Redemption price and Additional
Amounts (if applicable) with respect to this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Issuer under the Indenture and this
Security are guaranteed pursuant to Parent Guaranties endorsed hereon as
provided in the Indenture. Each Holder, by holding this Security, agrees to all
the terms and provisions of the Parent Guaranties.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder of
this Security for the enforcement of any payment of principal or premium, if
any, hereof or interest hereon on or after the respective due dates expressed
herein.
At any time when neither the Issuer nor the Parent Guarantor is
subject to Sections 13 or 15(d) of the Exchange Act, upon the written request of
a Holder of a Series A Security, the Issuer will promptly furnish or cause to be
furnished such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor
37
provision thereto) to such Holder or to a prospective purchaser of such Series A
Security who such Holder informs the Issuer is reasonably believed to be a
Qualified Institutional Buyer, as the case may be, in order to permit compliance
by such Holder with Rule 144A under the Securities Act.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Parent Guarantor, the Trustee and any agent of the
Issuer, the Parent Guarantor or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or not
this Security is overdue, and neither the Issuer, the Parent Guarantor, the
Trustee nor any such agent shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
(b) The form of the reverse of the Series B Securities shall be
substantially as follows:
38
USI AMERICAN HOLDINGS, INC.
7 1/4% SENIOR NOTE DUE DECEMBER 1, 2006, SERIES B
GUARANTEED AS TO PAYMENT OF PRINCIPAL
AND INTEREST BY U.S. INDUSTRIES, INC.
This Security is one of a duly authorized issue of Securities of the
Issuer designated as its 7 1/4% Senior Notes Due December 1, 2006 (the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $125,000,000, issued under and
subject to the terms of an indenture (the "Indenture") dated as of December 12,
1996 among the Issuer, U.S. Industries, Inc. (the "Parent Guarantor", which term
includes any successor corporation under the Indenture) and PNC Bank, National
Association, as trustee (the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Issuer, the Parent Guarantor, the Trustee and the Holders of the Securities, and
of the terms upon which the Securities, with the Parent Guaranties endorsed
thereon, are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Debt on the Securities, and (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the Parent Guarantor and the rights of the Holders of the Securities
under the Indenture at any time by the Issuer and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Issuer and the Parent Guarantor with
certain provisions of the Indenture and certain past Defaults under the
Indenture and their consequences. Any such consent or waiver by or on behalf of
the Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of
39
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
the Parent Guarantor or any other obligor on the Securities (in the event the
Parent Guarantor or such other obligor is obligated to make payments in respect
of the Securities), which is absolute and unconditional, to pay the principal or
premium, if any, of, and interest on, and Tax Redemption Price and Additional
Amounts (if applicable) with respect to this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Issuer under the Indenture and this
Security are guaranteed pursuant to Parent Guaranties endorsed hereon as
provided in the Indenture. Each Holder, by holding this Security, agrees to all
the terms and provisions of the Parent Guaranties.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder of
this Security for the enforcement of any payment of principal or premium, if
any, hereof or interest hereon on or after the respective due dates expressed
herein.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form
40
satisfactory to the Issuer and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Parent Guarantor, the Trustee and any agent of the
Issuer, the Parent Guarantor or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or not
this Security is overdue, and neither the Issuer, the Parent Guarantor, the
Trustee nor any such agent shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
Section 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be included on the
form of the face of the Securities substantially in the following form:
41
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
[SERIES A SECURITIES]
This is one of the 7 1/4% Senior Notes Due December 1, 2006, Series
A referred to in the within-mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Signatory
42
[SERIES B SECURITIES]
This is one of the 7 1/4% Senior Notes Due December 1, 2006, Series
B referred to in the within-mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Signatory
43
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $125,000,000 in
principal amount of Securities, except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the same aggregate principal amount pursuant to Section 303,
304, 305, 306, 307 or 906. The Issuer may issue Exchange Securities from time to
time pursuant to an Exchange Offer, in each case pursuant to a Board Resolution
and subject to Section 303, in authorized denominations in exchange for a like
principal amount of Initial Securities. Upon any such exchange the Initial
Securities shall be cancelled in accordance with Section 311 and shall no longer
be deemed Outstanding for any purpose. In no event shall the aggregate principal
amount of Initial Securities and Exchange Securities Outstanding exceed
$125,000,000.
The Securities shall be known and designated as the "7 1/4% Senior
Notes Due December 1, 2006" of the Issuer. The Stated Maturity of the Securities
shall be December 1, 2006, and the Securities shall each bear interest at the
rate of 7 1/4% per annum, as such interest rate may be adjusted as set forth in
the Security, from December 12, 1996, or from the most recent Interest Payment
Date to which interest has been paid, payable semiannually in arrears on June 1
and December 1 in each year, commencing June 1, 1997, to persons who are
registered Holders of the Securities at the close of business on the May 15 or
November 15 immediately preceding such interest payment date until the principal
thereof is paid or duly provided for. Interest on any overdue principal shall be
payable on demand. Pursuant to the Registration Rights Agreement, and as set
forth on the face of the Securities, under certain circumstances, the interest
rate borne by the Series A Securities may increase by 0.50% per annum, and if so
increased may thereafter decrease to the initial rate set forth on the face of
the Securities.
The principal or premium, if any, of, and interest on, and the Tax
Redemption Price and Additional Amounts with respect to, the Securities shall be
payable in immediately available funds and, subject to the limitations
applicable to the Global Securities, the Securities will be exchangeable and
transferable at an office or agency of the Issuer in The City of New York
maintained for such purposes (which initially will be the New York Corporate
Trust Office of the Trustee) or at such other office or agency as may be
maintained for such purpose, 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; provided, however, that payment of interest may be made at the
option of the Issuer by
44
check mailed to addresses of the Persons entitled thereto as such addresses
shall appear on the Security Register.
Any amounts paid, or caused to be paid, by the Parent Guarantor or
its assignee (or any successor to the Parent Guarantor or such assignee as
permitted under this Indenture) under the Parent Guaranties, or paid by any
successor to the Issuer under this Indenture, will be paid without deduction or
withholding for any and all present and future taxes, levies, imposts or other
governmental charges whatsoever imposed, assessed, levied or collected by or for
the account of the United Kingdom (including any political subdivision or taxing
authority thereof) or the jurisdiction of incorporation or residence (other than
the United States or any political subdivision or taxing authority thereof) of
any assignee of the Parent Guarantor or any successor to the Issuer or the
Parent Guarantor, or any political subdivision or taxing authority thereof (an
"Other Jurisdiction"), or, if deduction or withholding of any taxes, levies,
imposts or other governmental charges shall at any time be required by the
United Kingdom or an Other Jurisdiction, the Parent Guarantor, its assignee or
any relevant successor will (subject to timely compliance by the Holders or
beneficial owners of the relevant Securities with any relevant administrative
requirements) pay or cause to be paid such additional amounts ("Additional
Amounts") in respect of principal, premium, if any, or interest as may be
necessary in order that the net amounts paid to the Holders of the Securities or
the Trustee under this Indenture, as the case may be, pursuant to this Indenture
or the Parent Guaranties, after such deduction or withholding, shall equal the
respective amounts of principal, premium, if any, or interest as specified in
the Securities to which such Holders or the Trustee are entitled; provided,
however, that the foregoing shall not apply to (i) any present or future taxes,
levies, imposts or other governmental charges which would not have been so
imposed, assessed, levied or collected but for the fact that the Holder or
beneficial owner of the relevant Security is or has been a domiciliary, national
or resident of, engages or has been engaged in business, maintains or has
maintained a permanent establishment, or is or has been physically present in,
the United Kingdom or the Other Jurisdiction, or otherwise has or has had some
connection with the United Kingdom or the Other Jurisdiction (other than the
holding or ownership of a Security, or the collection of principal of, premium,
if any, and interest on, or the enforcement of, a Security or Parent
Guaranties), (ii) any present or future taxes, levies, imposts or other
governmental charges which would not have been so imposed, assessed, levied or
collected but for the fact that, where presentation is required, the relevant
Security was presented more than thirty days after the date such payment became
due or was provided for, whichever is later, (iii) any present or future taxes,
levies, imposts or other governmental charges which are payable otherwise than
by deduction or withholding from payments on or in respect of the relevant
Security or Parent Guaranties, (iv) any present or future taxes, levies, imposts
or other governmental charges which would not have been so imposed, assessed,
levied or collected but for the failure to comply, on a sufficiently timely
basis,
45
with any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with the United
Kingdom or the Other Jurisdiction or any other relevant jurisdiction of the
Holder or beneficial owner of the relevant Security, if such compliance is
required by a statute or regulation of the United Kingdom or the Other
Jurisdiction, or by a relevant treaty, as a condition to relief or exemption
from such taxes, levies, imposts or other governmental charges, (v) any present
or future taxes, levies, imposts or other governmental charges (A) which would
not have been so imposed, assessed, levied or collected if the beneficial owner
of the relevant Security had been the Holder of such Security, or (B) which, if
the beneficial owner of such Security had held the Security as the Holder of
such Security, would have been excluded pursuant to clauses (i) through (iv)
above, or (vi) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge.
No payments of Additional Amounts pursuant to this Indenture or the
Parent Guaranties will be made with respect to any deduction or withholding
requirement imposed by any governmental unit other than the United Kingdom, an
Other Jurisdiction or a taxing authority or political subdivision thereof.
The Securities shall be subject to Tax Redemption in accordance with
Article Thirteen and to redemption as provided in Article Fourteen and shall not
have the benefit of any sinking fund obligations.
The Securities shall be subject to defeasance or covenant defeasance
at the option of the Issuer in accordance with Article Twelve.
The Securities shall be guaranteed by the Parent Guaranties in
accordance with Article Eleven including, without limitation, the provision for
the release of the Parent Guaranties under the provisions provided for therein.
For all purposes hereunder, the Series A Securities and the Series B
Securities will be treated as one class, including with respect to any
amendment, waiver, acceleration or any other Act of the Holders, and are
together referred to as the "Securities". The Series A Securities and Series B
Securities rank pari passu in right of payment of principal, premium, if any,
and interest with each other and rank pari passu in
right of payment of principal, premium, if any, and interest with all other
existing and future unsecured and unsubordinated indebtedness of, the Issuer and
Parent Guarantor.
Section 302. Denominations.
The Securities shall be issuable only in fully registered form
without coupons, in denominations of $1,000 and any integral multiple thereof.
46
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by one of
its Chairman of the Board, its President, its Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or one of its Vice Presidents
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signatures of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Issuer may deliver Securities executed by the Issuer to
the Trustee (with the Parent Guaranties endorsed thereon) for authentication,
together with a Issuer Order for the authentication and make available for
delivery of such Securities; and the Trustee in accordance with such Issuer
Order shall authenticate and deliver such Securities as provided in this
Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security or Parent Guaranties endorsed thereon shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such certificate upon any
Security or Parent Guaranty shall be conclusive evidence, and the only evidence,
that such Security or Parent Guaranty has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case the Issuer, pursuant to Article Eight, shall, in a single
transaction or through a series of related transactions, be consolidated or
merged with or into any other Person or shall sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its properties and
assets on a Consolidated basis to any Person, and the successor Person resulting
from such consolidation or surviving such merger, or into which the Issuer or
the Parent Guarantor shall have been merged, or the successor Person which shall
have participated in the sale, assignment, conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto,
in a form satisfactory to the Trustee, with the Trustee pursuant to Article
Eight, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition may, from time to time, at the
47
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Issuer Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 303 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
At any time and from time to time after the execution and delivery
of this Indenture and after the effectiveness of a Registration Statement under
the Securities Act with respect thereto, the Issuer may deliver Exchange
Securities executed by the Issuer and having endorsed thereon the Parent
Guaranties executed under Section 1102 by the Parent Guarantor, to the Trustee
for authentication, together with an Issuer Order for the authentication and
delivery of such Exchange Securities and a like principal amount of Initial
Securities for cancellation in accordance with Section 311, and the Trustee in
accordance with the Issuer Order shall authenticate and deliver such Securities,
with the Parent Guaranties endorsed thereon. Prior to authenticating such
Exchange Securities, and accepting any additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, if requested, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating in substance:
(1) that all conditions hereunder precedent to the authentication
and delivery of such Exchange Securities with the Parent Guaranties
endorsed thereon have been complied with and that such Exchange Securities
and the Parent Guaranties endorsed thereon, when such Securities have been
duly authenticated and delivered by the Trustee (and subject to any other
conditions specified in such Opinion of Counsel), have been duly issued
and delivered and will constitute valid and legally binding obligations of
the Issuer and the Parent Guarantor, respectively, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and
(2) that the issuance of the Exchange Securities in exchange for
Initial Securities has been effected in compliance with the Securities
Act.
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No Security or Parent Guaranties endorsed thereon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated an delivered hereunder
and that the Parent Guaranties endorsed thereon has been duly endorsed thereon
and delivered hereunder.
If an officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates such Security such Security shall
be valid nevertheless.
If an officer whose signature is on this Indenture no longer holds
office at the time the Trustee authenticates a Security, such Security shall be
valid nevertheless.
Section 304. Temporary Securities.
Subject to limitations with respect to Global Securities, pending
the preparation of definitive Securities with the Parent Guaranties endorsed
thereon, the Issuer and the Parent Guarantor may execute, and upon Issuer Order
the Trustee shall authenticate and make available for delivery, temporary
Securities with temporary Parent Guaranties endorsed thereon, which are printed,
lithographed, typewritten or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities with the Parent
Guaranties endorsed thereon in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities are issued, the Issuer and the Parent
Guarantor will cause definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Issuer designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Issuer shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of authorized
denominations with the Parent Guaranties endorsed thereon. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 305. Global Securities.
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by Issuer and the Parent
Guarantor
49
for such Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Issuer and the Parent
Guarantor that it is unwilling or unable to continue as Depositary for such
Global Security, or (B) has ceased to be a clearing agency registered as such
under the Exchange Act, (ii) there shall have occurred and be continuing an
Event of Default or any event which after notice or lapse of time or both would
be an Event of Default with respect to such Global Security, or (iii) the Issuer
executes and delivers to the Trustee an Issuer Order stating that all Global
Securities shall be exchanged in whole for Securities that are not Global
Securities (in which case such exchange shall be effected by the Trustee). Upon
the occurrence in respect of any Global Security of any one or more of the
conditions specified in clauses (i), (ii) or (iii) of the preceding sentence,
such Global Security may be registered for transfer or exchange for Securities
registered in the name of, or authenticated and delivered to, such Persons as
the Depositary shall direct. All or any portion of a Global Security may be
exchanged for a Security that has a like aggregate principal amount and is not a
Global Security, upon 20 days' prior request made by the Depositary or its
authorized representative to the Trustee.
(c) If any Global Security is to be exchanged for other Securities
or cancelled in whole, it shall be surrendered by or on behalf of the Depositary
or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation as provided in this Article Three. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is
to be exchanged in whole or in part for a
beneficial interest in any Global Security, then either (i) such Global Security
shall be so surrendered for exchange or cancellation as provided in this Article
Three, or (ii) the principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or cancelled, or equal to
the principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Trustee, as Security Registrar, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Security, the Trustee shall,
subject to Section 305(b) and as otherwise provided in this Article Three,
authenticate and make available for delivery any Securities issuable in exchange
for such Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depositary or its authorized
representative. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in Section
50
305(b), the Issuer shall promptly make available to the Trustee a reasonable
supply of Securities that are not in the form of Global Securities. The Trustee
shall be entitled to rely upon any order, direction or request of the Depositary
or its authorized representative which is given or made pursuant to this Article
Three if such order, direction or request is given or made in accordance with
the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three, Section 906 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture, the Securities and the Parent Guaranties, and owners of
beneficial interests in a Global Security shall hold such interests pursuant to
the Applicable Procedures. Accordingly, any such owner's beneficial interest in
a Global Security will be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee or
its Agent Members.
Section 306. Registration, Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Securities Act Legends.
(a) Registration, Registration of Transfer and Exchange Generally.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the registration
of Securities and of transfers and exchanges of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers and exchanges of Securities as herein provided. Such Security
Register shall distinguish between Initial Securities and Exchange Securities.
Subject to the limitations applicable to Global Securities, upon
surrender for registration of transfer of any Security at an office or agency of
the Issuer designated pursuant to Section 1002 for such purpose, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations, of a like aggregate principal amount and tenor and
bearing such restrictive legends as may be required by this Indenture, each such
new Security having endorsed thereon the Parent Guaranties executed by the
Parent Guarantor.
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At the option of the Holder, Securities (except Global Securities) may be
exchanged for other Securities of any authorized denominations, of a like
aggregate principal amount and tenor and bearing such restrictive legends as may
be required by this Indenture, each such new Security having endorsed thereon
the Parent Guaranties executed by the Parent Guarantor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities having endorsed
thereon the Parent Guaranties executed by the Parent Guarantor which the Holder
making the exchange is entitled to receive.
All Securities and the Parent Guaranties endorsed thereon issued
upon any registration of transfer or exchange of Securities shall be the valid
obligations of the Issuer and the Parent Guarantor, evidencing the same debt,
and (except for the differences between Initial Securities and Exchange
Securities provided for herein) entitled to the same benefits under this
Indenture, as the Securities and Parent Guaranties endorsed thereon,
respectively, surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 303, 304, 305, 306 or 906 not involving any
transfer.
The Issuer shall not be required (i) to issue, register the transfer
of or exchange Securities during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1301 or Section 1403 and ending at the
close of business on the day of such mailing or (ii) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 306(b) shall be made only in accordance with this Section
306(b).
52
(i) Restricted Global Security to Regulation S Global Security. If the
owner of a beneficial interest in the Restricted Global Security wishes at
any time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Regulation S Global
Security, such transfer may be effected only in accordance with the
provisions of this clause (b)(i) and clause (b)(vii) below and subject to
the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Regulation S
Global Security in a specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest in the Restricted
Global Security in an equal principal amount be debited from another
specified Agent Member's account, and (B) a Regulation S Certificate,
satisfactory to the Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Security or his attorney duly
authorized in writing, then the Trustee, as Security Registrar, but
subject to clause (b)(vii) below, shall reduce the principal amount of the
Restricted Global Security and increase the principal amount of the
Regulation S Global Security by such specified principal amount as
provided in Section 305(c).
(ii) Regulation S Global Security to Restricted Global
Security. If the owner of a beneficial interest in the Regulation S Global
Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Restricted Global Security, such transfer may be effected only in
accordance with this clause (b)(ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A) an
order given by the Depositary or its authorized representative directing
that a beneficial interest in the Restricted Global Security in a
specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Regulation S Global Security
in an equal principal amount be debited from another specified Agent
Member's account, and (B) if such transfer is to occur during the
Restricted Period, a Restricted Securities Certificate, satisfactory to
the Trustee and duly executed by the owner of such beneficial interest in
the Regulation S Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar, shall reduce the
principal amount of the Regulation S Global Security and increase the
principal amount of the Restricted Global Security by such specified
principal amount as provided in Section 305(c).
(iii) Restricted Non-Global Security to Restricted Global
Security or Regulation S Global Security. If the Holder of a Restricted
Security (other than a Global Security) wishes at any time to transfer all
or any portion of such Security to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Restricted Global
Security or the Regulation S Global Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(iii)
and
53
clause (b)(vii) below and subject to the Applicable Procedures. Upon
receipt by the Trustee, as Security Registrar, of (A) such Security as
provided in Section 306(a) and instructions satisfactory to the Trustee
directing that a beneficial interest in the Restricted Global Security or
Regulation S Global Security in a specified principal amount not greater
than the principal amount of such Security be credited to a specified
Agent Member's account, and (B) a Restricted Securities Certificate, if
the specified account is to be credited with a beneficial interest in the
Restricted Global Security, or a Regulation S Certificate, if the
specified account is to be credited with a beneficial interest in the
Regulation S Global Security, in either case satisfactory to the Trustee
and duly executed by such Holder or his attorney duly authorized in
writing, then the Trustee, as Security Registrar but subject to clause
(b)(vii) below, shall cancel such Security (and issue a new Security in
respect of any untransferred portion thereof) as provided in Section
306(a) and increase the principal amount of the Restricted Global Security
or the Regulation S Global Security, as the case may be, by the specified
principal amount as provided in Section 305(c).
(iv) Regulation S Non-Global Security to Restricted Global
Security or Regulation S Global Security. If the Holder of a Regulation S
Security (other than a Global Security) wishes at any time to transfer all
or any portion of such Security to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Restricted Global
Security or the Regulation S Global Security, such transfer may be
effected only in accordance with this clause (b)(iv) and clause (b)(vii)
below and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) such Security as provided in
Section 306(a) and instructions satisfactory to the Trustee directing that
a beneficial interest in the Restricted Global Security or Regulation S
Global Security in a specified principal amount not greater than the
principal amount of such Security be credited to a specified Agent
Member's account, and (B) if the transfer is to occur during the
Restricted Period and the specified account is to be credited with a
beneficial interest in the Restricted Global Security, a Restricted
Securities Certificate satisfactory to the Trustee and duly executed by
such Holder or his attorney duly authorized in writing, then the Trustee,
as Security Registrar but subject to clause (b) (vii) below, shall cancel
such Security (and issue a new Security in respect of any untransferred
portion thereof) as provided in Section 306(a) and increase the principal
amount of the Restricted Global Security or the Regulation S Global
Security, as the case may be, by the specified principal amount as
provided in Section 305(c).
(v) Non-Global Security to Non-Global Security. A Security that
is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not a
Global Security as
54
provided in Section 306(a), provided that, if the Security to be
transferred in whole or in part is a Restricted Security, or is a
Regulation S Security and the transfer is to occur during the Restricted
Period, then the Trustee shall have received (A) a Restricted Securities
Certificate, satisfactory to the Trustee and duly executed by the
transferor Holder or his attorney duly authorized in writing, in which
case the transferee Holder shall take delivery in the form of a Restricted
Security, or (B) a Regulation S Certificate, satisfactory to the Trustee
and duly executed by the transferor Holder or his attorney duly authorized
in writing, in which case the transferee Holder shall take delivery in the
form of a Regulation S Security (subject in each case to Section 306(c)).
(vi) Exchanges between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged for
a Security that is not a Global Security as provided in Section 305,
provided that, if such interest is a beneficial interest in the Restricted
Global Security, or if such interest is a beneficial interest in the
Regulation S Global Security and such exchange is to occur during the
Restricted Period, then such interest shall be exchanged for a Restricted
Security (subject in each case to Section 306(c)). A Security that is not
a Global Security may be exchanged for a beneficial interest in a Global
Security only if (A) such exchange occurs in connection with a transfer
effected in accordance with clause (b)(iii) or clause (b)(iv) above, or
(B) such Security is a Regulation S Security and such exchange occurs
after the Restricted Period.
(vii) Regulation S Global Security to be Held Through
Euroclear or Cedel during Restricted Period. The Issuer shall use its best
efforts to cause the Depositary to ensure that, until the expiration of
the Restricted Period, beneficial interests in the Regulation S Global
Security may be held only in or through accounts maintained at the
Depositary by Euroclear or Cedel (or by Agent Members acting for the
account thereof), and no Person shall be entitled to effect any transfer
or exchange that would result in any such interest being held otherwise
than in or through such an account; provided that this clause (b)(vii)
shall not prohibit any transfer or exchange of such an interest in
accordance with clause (b)(ii) or clause (b)(vi) above.
(viii) Transfers to Certain Institutional Accredited
Investors. In addition to the requirements set forth in clauses (i)
through (vii) above, if a Restricted Security is to be transferred in
whole or in part to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act),
which is not a "Qualified Institutional Buyer" (as defined in Rule 144A
under the Securities Act), in a transaction that is not outside of the
United States (within the meaning of Regulation S under the Securities
Act),
55
then the Trustee shall have received a Transfer Notice, satisfactory to
the Trustee and duly executed by the transferee Holder or his attorney
duly authorized in writing, unless the requested transfer is at least
three years after the Issue Date.
(c) Securities Act Legends. Rule 144A Securities, Other Securities
and their respective Successor Securities shall bear a Restricted Securities
Legend, and Initial Regulation S Securities and their Successor Securities shall
bear a Regulation S Legend, subject to the following:
(i) subject to the following clauses of this Section 306(c), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(ii) subject to the following clauses of this Section 306(c),
a new Security which is not a Global Security and is issued in exchange
for another Security (including a Global Security) or any portion thereof,
upon transfer or otherwise, shall bear the Securities Act Legend borne by
such other Security, provided that, if such new Security is required
pursuant to Section 306(b)(v) or 306(b)(vi) to be issued in the form of a
Restricted Security, it shall bear a Restricted Securities Legend and, if
such new Security is so required to be issued in the form of a Regulation
S Security, it shall bear a Regulation S Legend;
(iii) Registered Securities shall not bear a Securities Act
Legend;
(iv) after December 12, 1999, a new Security which does not
bear a Securities Act Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof which bears
such a legend if the Trustee has received an Unrestricted Securities
Certificate, satisfactory to the Trustee and duly executed by the Holder
of such legended Security or his attorney duly authorized in writing, and
after such date and receipt of such certificate, the Trustee shall
authenticate and deliver such a new Security in exchange for or in lieu of
such other Security as provided in this Article Three;
(v) a new Security which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if, in
the Issuer's judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the Issuer, shall
authenticate and deliver such a new Security as provided in this Article
Three; and
56
(vi) notwithstanding the foregoing provisions of this Section 306(c), a
Successor Security of a Security that does not bear a particular form of
Securities Act Legend shall not bear such form of legend unless the Issuer
has reasonable cause to believe that such Successor Security is a
"restricted security" within the meaning of Rule 144, in which case the
Trustee, at the direction of the Issuer, shall authenticate and deliver a
new Security bearing a Restricted Securities Legend in exchange for such
Successor Security as provided in this Article Three.
Section 307. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b)
the Issuer and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Issuer, the Parent Guarantor and the Trustee, such security or indemnity, in
each case, as may be required by them to save each of them harmless, then, in
the absence of actual notice to the Issuer, the Parent Guarantor or the Trustee
that such Security has been acquired by a bona fide purchaser, the Issuer shall
execute and upon a Issuer Request the Trustee shall authenticate and make
available for delivery, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a replacement Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section,
the Issuer may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section 307 in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer and the Parent Guarantor,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Securities 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 Securities.
57
Section 308. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on the Stated Maturity of such interest shall be paid to the
Person in whose name the Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest payment
date.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on the Stated Maturity of such interest, and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Issuer, at its election in each case, as provided in
subsection (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or any
relevant Predecessor Securities) 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 Issuer
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date (not less
than 30 days after such notice) of the proposed payment (the
"Special Payment Date"), and at the same time the Issuer 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 Special Payment Date, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this subsection provided. Thereupon 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 Special Payment Date 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 Issuer
in writing of such Special Record Date. In the name and at the
expense of the Issuer, the Trustee 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 Security 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 and Special Payment Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
58
Securities are registered on such Special Record Date and shall no
longer be payable pursuant to the following subsection (b).
(b) The Issuer may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and
upon such notice as may be required by such exchange, if, after
written notice given by the Issuer to the Trustee of the proposed
payment pursuant to this subsection, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 307 each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Security.
Section 309. CUSIP Numbers.
The Issuer in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and the Issuer, or the Trustee on behalf of the Issuer,
shall use CUSIP numbers in notices of exchange or notices of redemption as a
convenience to Holders; provided, however, that any such notice shall state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of exchange and that
reliance may be placed only on the other identification numbers printed on the
Securities; provided, further, any such redemption or exchange shall not be
affected by any defect in or omission of such CUSIP numbers in any notice of
exchange or notice of redemption.
Section 310. Persons Deemed Owners.
Prior to due surrender of a Security for registration of transfer,
the Issuer, the Parent Guarantor, the Trustee and any agent of the Issuer, the
Parent Guarantor or the Trustee may treat the Person in whose name any Security
is registered as the owner of such Security for the purpose of receiving payment
of principal of, premium, if any, and (subject to Section 308) interest on, such
Security and for all other purposes whatsoever, whether or not such Security is
overdue, and neither the Issuer, the Parent Guarantor, the Trustee nor any agent
of the Issuer, the Parent Guarantor or the Trustee shall be affected by notice
to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Issuer, the Parent Guarantor, the Trustee, and any agent of the Issuer, the
Parent Guarantor or the Trustee as the owner of such Global Security for all
purposes whatsoever. None of the Issuer, the Parent
59
Guarantor, the Trustee nor any agent of the Issuer, the Parent Guarantor or the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section 311. Cancellation.
All Securities surrendered for payment, redemption, purchase,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already cancelled, shall be promptly cancelled by it. The Issuer and the
Parent Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer or
the Parent Guarantor may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be destroyed and
certification of their destruction delivered to the Issuer, unless by a Issuer
Order received by the Trustee prior to such destruction, the Issuer shall direct
that the cancelled Securities be returned to it. The Trustee shall provide the
Issuer a list of all Securities that have been cancelled from time to time as
requested by the Issuer.
Section 312. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture, the Securities and the Parent Guaranties shall be
discharged and shall cease to be of further effect (except, if applicable, as to
(a) the surviving rights of registration of transfer or exchange of Securities,
as expressly provided for herein or (b) the right to receive Additional Amounts)
as to all Outstanding Securities hereunder, and the Trustee, upon Issuer Request
and at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
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(1) all such Securities theretofore, authenticated and
delivered (other than (i) lost, stolen or destroyed Securities which have
been replaced or paid as provided in Section 307 or (ii) all Securities
for whose payment in United States dollars have theretofore been deposited
in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, in accordance with
Section 1003) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (ii) will become
due and payable at their Stated Maturity within one year or (iii) are to
be called 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 Issuer, or the Issuer in the case of
(i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust an amount in United
States dollars sufficient to pay and discharge the entire Debt on such
Securities, theretofore delivered to the Trustee cancelled or for
cancellation, including the principal of, premium, if any, and accrued
interest on (and, if applicable, the Tax Redemption Price and Additional
Amounts with respect to) such Securities at such Maturity or Stated
Maturity or Tax Redemption Date, as the case may be;
(b) the Issuer or the Parent Guarantor has paid or caused to
be paid all other sums payable hereunder by the Issuer and the Parent
Guarantor with respect to such Securities; and
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, in form and substance
reasonably satisfactory to the Trustee, each stating that (i) all
conditions precedent herein relating to the satisfaction and discharge
hereof have been complied with, and (ii) such satisfaction and discharge
will not result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or instrument to
which the Issuer, the Parent Guarantor or any Subsidiary is a party or by
which the Issuer, the Parent Guarantor or any Subsidiary is bound.
Upon compliance by the Issuer with this Section 401, and if the
Issuer has paid or caused to be paid all sums payable under this Indenture, this
Indenture, the Securities and any Parent Guaranties issued hereunder shall cease
to be of any effect (except as otherwise provided herein).
Notwithstanding the satisfaction and discharge hereof, the
obligations of the Issuer to the Trustee under Section 607 and, if United States
dollars shall have been
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deposited with the Trustee pursuant to subclause (2) of subsection (a) of this
Section 401, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars deposited with the Trustee pursuant to Section 401 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, interest on and Tax Redemption Price or Additional Amounts, if
applicable, with respect to, the Securities for whose payment such United States
dollars have been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on
any Security when it becomes due and payable, and such default shall
continue for a period of 30 days;
(b) there shall be a default in the payment of the principal
of (or premium, if any, on), or the Redemption Price, Tax Redemption Price
or Additional Amounts with respect to, any Security when due and payable;
(c) there shall be a default in the performance, or breach, of
any covenant or agreement of the Issuer or the Parent Guarantor under this
Indenture (other than a default in the performance, or breach, of a
covenant or agreement which is specifically dealt with in clauses (a) or
(b) of this Section 501) and such default or breach shall continue for a
period of 60 days, after written notice has been given, by certified mail,
(i) to the Issuer and the Parent Guarantor by the Trustee, or (ii) to the
Issuer, the Parent Guarantor and the Trustee by the Holders
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of not less than 25% in aggregate principal amount of the Outstanding
Securities, which notice shall specify that it is a "Notice of Default"
and shall demand that such a default be remedied;
(d) there shall be a default or defaults under any bond(s),
debenture(s), note(s) or other evidence(s) of Debt by the Issuer, the
Parent Guarantor or any Restricted Subsidiary or under any mortgage(s),
indenture(s) or instrument(s) under which there may be issued or by which
there may be secured or evidenced any Debt by the Issuer, the Parent
Guarantor or any Restricted Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of $25,000,000,
whether such Debt now exists or shall hereafter be Incurred, which default
or defaults shall constitute a failure to pay at final maturity the
principal of such Debt when due and payable after the expiration of any
applicable notice and grace period with respect thereto, or shall have
resulted in such Debt becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable and such
acceleration shall not have been rescinded or annulled, or such
accelerated Debt shall not have been discharged, within five Business Days
of such acceleration;
(e) the rendering of a final judgment or judgments (not
subject to appeal) against the Issuer, the Parent Guarantor or any
Restricted Subsidiary in an aggregate amount in excess of $25,000,000
which remains unstayed, undischarged or unbonded for a period of 60 days
thereafter;
(f) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Issuer,
the Parent Guarantor or any Restricted Subsidiary in an involuntary case
or proceeding under any applicable Bankruptcy Law, or (ii) a decree or
order adjudging the Issuer, the Parent Guarantor or any Restricted
Subsidiary bankrupt or insolvent, or ordering reorganization, arrangement,
adjustment or composition of or in respect of the Issuer, the Parent
Guarantor or any Restricted Subsidiary under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Issuer, the
Parent Guarantor or any Restricted Subsidiary or of any substantial part
of their respective properties, or ordering the winding up or liquidation
of their respective affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be
unstayed and in effect, for a period of 75 consecutive days;
(g) (i) the Issuer, the Parent Guarantor or any Restricted
Subsidiary commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt
or insolvent, (ii) the Issuer, the Parent Guarantor or any Restricted
Subsidiary
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consents in writing to the entry of a decree or order for relief against
the Issuer, the Parent Guarantor or such Restricted Subsidiary in an
involuntary case or proceeding under any applicable Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding
against it, (iii) the Issuer, the Parent Guarantor or any Restricted
Subsidiary files a petition or answer or consent seeking reorganization or
relief under any applicable Bankruptcy Law, (iv) the Issuer, the Parent
Guarantor or any Restricted Subsidiary (A) consents to the filing of such
petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Issuer, the Parent Guarantor or such Restricted Subsidiary or of
any substantial part of their respective properties, (B) makes an
assignment for the benefit of creditors, or (C) admits in writing its
inability to pay its debts generally as they become due, or (v) the
Issuer, the Parent Guarantor or any Restricted Subsidiary takes any
corporate action in furtherance of any such actions in this clause (g); or
(h) there shall be a final, nonappealable determination by the
applicable governmental authority that the Parent Guarantor has failed to
maintain its dual tax residency in the United States and the United
Kingdom; provided that such failure could reasonably be expected to have a
material adverse effect on (i) the operations, business or financial
condition of the Issuer and its Subsidiaries taken as a whole or (ii) the
ability of the Parent Guarantor or the Issuer to perform any of its
payment obligations under the Parent Guaranties or the Securities,
respectively.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 501(f) and (g) with respect to the Issuer or the Parent Guarantor) with
respect to the Securities shall occur and be continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding may, and the Trustee at the request of
such Holders shall, declare all unpaid principal of, premium, if any, and
accrued interest on and, if applicable, the Tax Redemption Price or Additional
Amounts in respect of, all Securities then Outstanding, to be due and payable
immediately, by a notice in writing to the Issuer (and to the Trustee if given
by the Holders of the Securities) specifying the relevant Event of Default and
that it is a "notice of acceleration", and upon any such declaration, such
principal and interest shall become immediately due and payable. If an Event of
Default specified in Section 501(f) or 501(g) with respect to the Issuer or the
Parent Guarantor occurs and is continuing, then all the Securities shall ipso
facto become and be due and payable immediately in an amount equal to the
principal amount of the Securities and premium, if any, together with accrued
and unpaid interest, if any, to the date the Securities become due and payable,
and, if applicable, the Tax Redemption Price or Additional Amounts
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without any declaration or other act on the part of the Trustee or any Holder.
Thereupon, the Trustee may, at his or her discretion, proceed to protect and
enforce the rights of the Holders of the Securities by appropriate judicial
proceedings.
After such declaration of acceleration with respect to the
Securities, but before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Securities
Outstanding by written notice to the Issuer and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under
Section 607 and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Outstanding Securities,
(iii) the principal of any Outstanding Securities which
have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities; and
(b) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 503. Collection of Debt and Suits for Enforcement by Trustee.
The Issuer and the Parent Guarantor covenant that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal or
premium, if any, of any Security at the Stated Maturity thereof,
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then the Issuer and the Parent Guarantor will, upon demand of the Trustee, pay
to the Trustee, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal, premium, if any,
and interest, with interest upon the overdue principal and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate borne by the Securities; and, in addition thereto, 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.
If the Issuer or the Parent Guarantor, as the case may be, fails to
pay such amounts forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Issuer or the
Parent Guarantor or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Issuer, the Parent Guarantor or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or the Parent Guaranties by such appropriate
private or judicial proceedings as the Trustee shall deem most effectual to
protect and enforce such rights, including, without limitation, seeking recourse
against the Parent Guarantor pursuant to the terms of the Parent Guaranties,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein or therein, or
to enforce any other proper remedy, subject, however, to Section 512. No
recovery of any such judgment upon any property of the Issuer or the Parent
Guarantor shall affect or impair any rights, powers or remedies of the Trustee
or the Holders.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Issuer or any other obligor, including
the Parent Guarantor, upon the Securities or the property of the Issuer or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Issuer for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise, to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any
66
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official 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 the Trustee any amount due 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 607.
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 Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture, the Securities
or the Parent Guaranties may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for principal, premium, if any, Tax Redemption Price, if
any, Additional Amounts, if any, and interest, in respect of which or for
the benefit of
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which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Issuer and the Parent Guarantor, provided that all
sums due and owing to the Holders and the Trustee have been paid in full
as required by this Indenture.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of
the then Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer (and if requested, provision) of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any Security or the Parent Guaranties to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, any Security or the Parent Guaranties, except in the manner provided
in this Indenture and for the equal and ratable benefit of all the Holders.
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Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right based on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 308) interest on, such Security on the respective
Stated Maturities expressed in such Security or, in the case of redemption or
Tax Redemption, on the Redemption Date or the Tax Redemption Date, as the case
may be, and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or the Parent Guaranties and
such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Issuer, the Parent Guarantor, any other obligor on the Securities, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
307, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the then Outstanding Securities shall have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, provided that:
(a) such direction shall not be (i) in conflict with any rule
of law or with this Indenture (including, without limitation, Section
507), or (ii) be unduly prejudicial to Holders not joining therein; and
(b) subject to the provisions of Trust Indenture Act Section
315, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all
Outstanding Securities waive any past Default hereunder and its consequences,
except a Default:
(a) in the payment of the principal of, premium, if any, or
interest on, or Tax Redemption Price or Additional amounts with respect
to, any Security; or
(b) in respect of a covenant or a provision hereof which under
Section 902 cannot be modified or amended without the consent of the
Holder of each Security Outstanding, affected by such modification or
amendment.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion
require, 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, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
70
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on, or Tax Redemption Price or
Additional Amounts with respect to, any Security on or after the respective
Stated Maturities expressed in such Security.
Section 515. Waiver of Stay, Extension or Usury Laws.
Each of the Issuer and the Parent Guarantor covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Issuer or the Parent
Guarantor from paying all or any portion of the principal of, premium, if any,
or interest on, or Tax Redemption Price or Additional Amounts with respect to,
the Securities contemplated herein or in the Securities or which may affect the
covenants or the performance of this Indenture; and each of the Issuer and the
Parent Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 516. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article Five may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this
Indenture invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law.
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee.
Subject to the provisions of the Trust Indenture Act Sections 315(a)
through 315(d):
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(a) if a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill
in its exercise thereof as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs.
(b) except during the continuance of a Default or an Event of
Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to
the Trustee; and
(2) in the absence of bad faith or willful misconduct 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, in the
case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this subsection (c) does not limit the effect of
subsection (b) of this Section 601;
(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; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith, in accordance with a
direction of the Holders of a majority in principal amount of
Outstanding Securities, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power confirmed upon the Trustee under
this Indenture.
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability
in the
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performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to subsections (a), (b), (c) and (d) of this Section 601.
(f) the Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Issuer.
Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
Section 602. Notice of Defaults.
Within 90 days after a Responsible Officer of the Trustee receives
notice of the occurrence of any Default, the Trustee shall transmit by mail to
all Holders and any other persons entitled to receive reports pursuant to
Section 313(c) of the Trust Indenture Act, as their names and addresses appear
in the Security Register, notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of, premium, if
any, or interest on, any Security (or if applicable Tax Redemption Price or
Additional Amounts, if any), the Trustee shall be protected in withholding such
notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 and Trust Indenture Act
Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of Debt or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by a Issuer Request or Issuer Order and
any resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution;
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(c) the Trustee may consult with counsel of its selection and any written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon
in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred therein or thereby in compliance with such request
or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture other
than any liabilities arising out of the negligence, bad faith or willful
misconduct of the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in aggregate principal amount
of the Securities then Outstanding; provided, however, that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Issuer upon demand;
provided further, however, the Trustee in its discretion may make such
further inquiry or investigation into such facts or matters as it may deem
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney;
(g) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate; and
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(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer and the Parent Guarantor, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in any Statement of Eligibility on Form T-1 supplied to
the Issuer are true and accurate subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by the
Issuer of Securities or the proceeds thereof.
Section 605. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other agent
of the Issuer, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Sections 608 and 613 and Trust Indenture Act Sections 310 and 311, may otherwise
deal with the Issuer and the Parent
Guarantor and receive, collect, hold and retain collections from the Issuer and
the Parent Guarantor with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Article Twelve, the Trustee shall be required to invest all
moneys received by the Trustee, until used or applied as herein provided, in
Cash Equivalents upon receipt of, and in accordance with, the specific written
directions of the Issuer.
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Section 607. Compensation and Indemnification of Trustee and Its Prior
Claim.
The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence, bad faith or
willful misconduct. The Issuer also covenants and agrees to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
claim, loss, liability, tax, assessment or other governmental charge (other than
taxes applicable to the Trustee's compensation hereunder) or expense incurred
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including enforcement of this Section
and also including any liability which the Trustee may incur as a result of
failure to withhold, pay or report any tax, assessment or other governmental
charge, and the costs and expenses of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligations of the Issuer under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for reasonable expenses,
disbursements and advances shall constitute an additional obligation hereunder
and shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee and each predecessor Trustee.
Section 608. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of
the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible to act as trustee under Trust Indenture Act Section
310(a)(5) and which shall have an office in The City of New York, a combined
capital and surplus of at least $100,000,000, to the extent there is an
institution eligible and willing to serve. If the Trustee does not have an
office in The City of New York, the Trustee shall appoint an agent in The City
of New York reasonably acceptable to the Issuer (which may be an Affiliate of
the Trustee) to conduct any activities which the Trustee may be required
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under this Indenture to conduct in The City of New York. If the Trustee
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of the Trustee shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 611.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice thereof to the Issuer. Upon
receiving such notice or resignation, the Issuer shall promptly appoint a
successor trustee by written instrument executed by authority of the Board of
Directors, a copy of which shall be delivered to the resigning Trustee and a
copy to the successor trustee. If an instrument of acceptance by a successor
trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may, or any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint a
successor trustee.
(c) The Trustee may be removed at any time for any cause or for no
cause by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee and to
the Issuer. If an instrument of acceptance by a successor trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may, or any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor by the
Issuer or by any Holder who has been a bona fide Holder of a Security for
at least six months,
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(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Issuer or
by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any case, (i) the Issuer by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, by a Board Resolution, shall promptly appoint a successor trustee and
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, the Issuer has not appointed a successor Trustee, a successor trustee
shall be appointed by the Act of the Holders of a majority in principal amount
of the Outstanding Securities delivered to the Issuer and the retiring Trustee.
Such successor trustee so appointed shall forthwith upon its acceptance of such
appointment become the successor trustee and supersede the successor trustee
appointed by the Issuer. If no successor trustee shall have been so appointed by
the Issuer or the Holders of the Securities and accepted appointment in the
manner hereinafter provided, the Holder of any Security who has been a bona fide
Holder for at least six months may, subject to Section 514, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
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Section 611. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Issuer or
the successor trustee, upon payment of its charges pursuant to Section 607 then
unpaid, such retiring Trustee shall pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $100,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 609.
Upon acceptance of appointment by any successor trustee as provided
in this Section 611, the Issuer shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
610. If the Issuer fails to give such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee (including the trust created by this Indenture) shall be the
successor of the Trustee hereunder, provided such corporation shall be eligible
under Trust Indenture Act Section 310(a) and this Article Six and shall have a
combined capital and surplus of at least $100,000,000 and have a Corporate Trust
Office or an agent selected in accordance with Section 609,
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without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities shall have been
authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Securities or in this Indenture provided that
the certificate of the Trustee shall have; provided that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 613. Preferential Collection of Claims Against Issuer.
If and when the Trustee shall be or become a creditor of the Issuer
(or other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust
Indenture Act regarding the collection of claims against the Issuer (or any such
other obligor). A Trustee who has resigned or been removed shall be subject to
the Trust Indenture Act Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 10 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record Date;
and
(b) at such other times as the Trustee may reasonably request
in writing, within 30 days after receipt by the Issuer of any such
request, a list of similar form and content to that in subsection (a)
hereof as of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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Section 702. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act Section
312(b) with other Holders with respect to their rights under this Indenture or
the Securities, and the Trustee shall comply with Trust Indenture Act Section
312(b). The Issuer, the Parent Guarantor, the Trustee, the Security Registrar
and any other Person shall have the protection of Trust Indenture Act Section
312(c). Further, every Holder of Securities, by
receiving and holding the same, agrees with the Issuer, the Parent Guarantor and
the Trustee that neither the Issuer, the Parent Guarantor nor the Trustee or any
agent of any of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Trust Indenture
Act Section 312.
Section 703. Reports by Trustee.
(a) Within 60 days after June 1 of each year commencing with the
first June 1 after the issuance of Securities, the Trustee, if so required under
the Trust Indenture Act, shall transmit by mail to all Holders, in the manner
and to the extent provided in Trust Indenture Act Section 313(c), a brief report
dated as of such June 1 in accordance with and with respect to the matters
required by Trust Indenture Act Section 313(a). The Trustee shall also transmit
by mail to all Holders, in the manner and to the extent provided in Trust
Indenture Act Section 313(c), a brief report in accordance with and with respect
to the matters required by Trust Indenture Act Section 313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this
Section 703 shall, at the time of such transmission, be mailed to the Issuer and
the Parent Guarantor and filed with each stock exchange, if any, upon which the
Securities are listed and also with the Commission. The Issuer will notify the
Trustee promptly if the Securities are listed on any stock exchange.
Section 704. Reports by Issuer and the Parent Guarantor.
The Issuer and the Parent Guarantor, as the case may be, shall:
(a) file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Issuer or the Parent Guarantor, as the case
may be, with the conditions and covenants of this Indenture as are
required from time to time by such rules and regulations (including such
information, documents and reports referred to in Trust Indenture Act
Section 314(a));
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(b) within 15 days after the filing thereof with the Trustee,
transmit by mail to all Holders in the manner and to the extent provided
in Trust Indenture Act Section 313(c), such summaries of any information,
documents and reports required to be filed by the Issuer or the Parent
Guarantor, as the case may be, pursuant to Section 1011 hereunder and
subsections (a) and (b) of this Section as are required by rules and
regulations prescribed from time to time by the Commission; and
(c) file with the Trustee and the Commission, and transmit to
Holders such other information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided
that information, documents or reports required to be filed with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
Section 705. Officers' Certificate with Respect to Change in Interest Rate.
Within five days after the day on which any increase or decrease in
the rate of interest borne by the Securities occurs pursuant to the Registration
Rights Agreement as set forth on the face of the Securities, the Issuer shall
deliver an Officers' Certificate to the Trustee stating the interest rate
thereupon in effect for the Securities and the date on which such rate became
effective.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer and Parent Guarantor May Consolidate, etc., Only on
Certain Terms.
(a) The Issuer shall not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any other
Person or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets on a Consolidated basis to any
Person, or permit any of its Subsidiaries to enter into any such transaction or
series of related transactions if such transaction or series of related
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Issuer and its Subsidiaries on a Consolidated basis to any other
Person, unless at the time and after giving effect thereto:
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(1) either (A) in the case of a merger or consolidation the Issuer will be
the surviving Person or (B) in the case of a merger or consolidation where
the Issuer is not the surviving Person and in the case of a sale,
assignment, conveyance, transfer, lease or other disposition, the Person
formed by such consolidation or into which the Issuer is merged or the
Person which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of the
Issuer and its Subsidiaries on a Consolidated basis (the "Surviving
Entity") will each be a corporation, partnership, trust or other entity
duly organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and will expressly
assume, by a supplemental indenture, in a form satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if
any, and interest on (and, if applicable, the Tax Redemption Price or
Additional Amounts in respect of) the Securities and the performance and
observance of all the covenants and conditions of the Indenture to be
performed and observed by the Issuer, and the Securities and this
Indenture, as the case may be, will remain in full force and effect as so
supplemented;
(2) immediately after giving effect to such transaction on a
pro forma basis, no Default or Event of Default will have occurred and be
continuing; and
(3) at the time of the transaction, the Issuer or the
Surviving Entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect that
such consolidation, merger, transfer, sale, assignment, conveyance,
transfer, lease or other disposition and the supplemental indenture in
respect thereof comply with this Indenture and that all conditions
precedent herein provided for relating to such transaction have been
complied with. In delivering any such Opinion of Counsel, counsel may rely
as to factual matters on certificates of officers of the Issuer.
(b) The Parent Guarantor shall not in a single transaction or
through a series of related transactions, consolidate with or merge with or into
any other Person or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its properties and assets on a Consolidated basis
to any Person or permit any of its Subsidiaries to enter into any such
transaction or series of related transactions if such transaction or series of
related transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Parent Guarantor and its Subsidiaries on a
Consolidated basis to any other Person, unless at the time and after giving
effect thereto:
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(1) either (A) in the case of merger or consolidation, the Parent
Guarantor will be the surviving Person or (B) in the case of a merger or
consolidation where the Issuer is not the surviving Person and in the case
of a sale, assignment, conveyance, transfer, lease or other disposition,
the Person formed by such consolidation or into which the Parent Guarantor
is merged or the Person which acquires by sale, assignment, conveyance,
transfer, lease or disposition all or substantially all of the properties
and assets of the Parent Guarantor and its Subsidiaries on a Consolidated
basis (the "Surviving Guarantor Entity") will each be a corporation,
partnership, trust or other entity duly organized and validly existing
under the laws of the United States of America, any state thereof or the
District of Columbia and each such Person and will expressly assume, by a
supplemental indenture, in a form satisfactory to the Trustee, the Parent
Guaranties and the performance and observance of all the covenants and
conditions of the Indenture to be performed and observed by the Parent
Guarantor, and such Parent Guaranties will remain in full force and
effect;
(2) immediately before and immediately after giving effect to
such transaction, on a pro forma basis, no Default or Event of Default
shall have occurred and be continuing; and
(3) at the time of the transaction the Parent Guarantor or the
Surviving Guarantor Entity will have delivered, or caused to be delivered,
to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each to the
effect that such consolidation, merger, transfer, sale, assignment,
conveyance, lease or other transaction and the supplemental indenture in
respect thereof comply with this Indenture and that all conditions
precedent therein provided for relating to such transaction have been
complied with, and thereafter all obligations of the predecessor shall
terminate.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Issuer or the Parent Guarantor, if any, in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Issuer or the Parent Guarantor, as the case may be, is merged
or the successor Person or Persons to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer or the Parent Guarantor,
as the case may be, under this Indenture, the Securities and/or the Parent
Guaranties, as the case may be, with the same effect as if such successor had
been named as the Issuer or the Parent Guarantor, as the case may be, herein, in
the Securities and/or in the Parent Guaranties, as the case may be. When a
successor (other than a successor
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that is a direct or indirect Subsidiary of the Parent Guarantor) assumes all the
obligations of its predecessor under this Indenture, the Securities or the
Parent Guaranties, as the case may be, the predecessor shall be released from
those obligations and covenants hereof and the Securities. In addition, if the
acquiring or successor Person to or of the Issuer is not a direct or indirect
Subsidiary of the Parent Guarantor, all obligations of the Parent Guarantor
under this Indenture and the Securities shall terminate and be of no further
force and effect and all obligations of the Parent Guarantor under this
Indenture and the Parent Guaranties shall be released.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Issuer, the Parent Guarantor
and any other obligor upon the Securities when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto or agreements or other instruments with respect
to the Parent Guaranties, in form and substance satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to the
Issuer, the Parent Guarantor or any other obligor upon the Securities, and
the assumption by any such successor of the covenants of the Issuer, the
Parent Guarantor or another obligor herein and in the Securities or in the
Parent Guaranties in accordance with Article Eight;
(b) to add to the covenants of the Issuer, the Parent
Guarantor or any other obligor upon the Securities for the benefit of the
Holders, or to surrender any right or power conferred upon the Issuer or
the Parent Guarantor or any other obligor upon the Securities, as
applicable, herein, in the Securities or in the Parent Guaranties;
(c) to cure any ambiguity, or to correct or supplement any
provision herein or in any supplemental indenture, the Securities or the
Parent Guaranties which may be defective or inconsistent with any other
provision herein or in any supplemental indenture, the Securities or the
Parent Guaranties or to make any other provisions with respect to matters
or questions arising under this Indenture or any supplemental indenture,
the Securities or the Parent Guaranties;
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provided that, in each case, such provisions shall not materially
adversely affect the interest of the Holders;
(d) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to evidence and provide the acceptance of the appointment
of a successor trustee hereunder; or
(f) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders, as
additional security for the payment and performance of the Issuer's or the
Parent Guarantor's obligations hereunder, in any property or assets,
including any of which are required to be mortgaged, pledged or
hypothecated, or in which a security interest or other Lien is required to
be granted to the Trustee pursuant to this Indenture or otherwise.
Section 902.Supplemental Indentures and Agreements with Consent of Holders.
Except as permitted by Section 901, with the consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Issuer, the Parent Guarantor
and the Trustee, the Issuer and the Parent Guarantor, when authorized by Board
Resolutions, and the Trustee may (1) enter into an indenture or indentures
supplemental hereto in form and substance satisfactory to the Trustee, for the
purpose of adding any provisions to or amending, modifying or changing in any
manner or eliminating any of the provisions of this Indenture, the Securities or
the Parent Guaranties (including, but not limited to, for the purpose of
modifying in any manner the rights of the Holders under this Indenture, the
Securities or the Parent Guaranties), or (2) waive compliance with any provision
in this Indenture, the Securities or the Parent Guaranties (other than waivers
of past Defaults covered by Section 513 and waivers of covenants which are
covered by Section 1013); provided, however, that no such supplemental
indenture, agreement or instrument shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any such Security, or reduce the principal
amount thereof (or premium, if any, thereon) or the rate of interest
thereon, or change the obligation of the Issuer or the Parent Guarantor to
pay (or reduce the amount) of any Additional Amounts with respect to any
Security, or change the place where, or the coin or currency in which, the
principal of any Security or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof;
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(b) reduce the percentage of the Securities, the consent of the Holders of
which is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver or compliance with certain
provisions of this Indenture;
(c) modify any of the provisions of this Section 902 or
Section 513 or 1013, except to increase the percentage of such Outstanding
Securities required for any such actions or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each such Security affected thereby;
(d) except as otherwise permitted under Article Eight, consent
to the assignment or transfer by the Issuer or the Parent Guarantor of any
of its rights and obligations hereunder;
(e) reduce the Redemption Price or, Tax Redemption Price of
any Security;
(f) amend the Parent Guaranties in a manner adverse to the
Holders of the Securities.
Upon the written request of the Issuer and the Parent Guarantor
accompanied by copies of Board Resolutions authorizing the execution of any such
supplemental indenture and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall join with the Issuer and the
Parent Guarantor in the execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture or
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to the Trust
Indenture Act Sections 315(a) through 315(d) and Section 602) shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
stating that the execution of such supplemental indenture, agreement or
instrument is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture, agreement
or instrument which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Issuer and the Parent Guarantor and authenticated and delivered
by the Trustee in exchange for Outstanding Securities.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Issuer, the Parent Guarantor and
the Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Issuer shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Issuer to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Issuer shall duly and punctually pay the principal of, premium,
if any, and interest on, and the Tax Redemption Price and Additional Amounts, if
any, with respect to the Securities in accordance with the terms of the
Securities and this Indenture.
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Section 1002. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency where, subject to the
limitations applicable to Global Securities, Securities may be presented or
surrendered for payment. The Issuer also will maintain in The City of New York
an office or agency where Securities, subject to the limitations applicable to
Global Securities, may be surrendered for registration of transfer, or exchange
and where notices and demands to or upon the Issuer in respect of the Securities
and this Indenture may be served. The New York Corporate Trust Office of the
Trustee shall be such office or agency of the Issuer, unless the Issuer shall
designate and maintain some other office or agency for one or more of such
purposes. The Issuer will give prompt written notice to the Trustee of the
location and any change in the location of any such offices or agencies. If at
any time the Issuer shall fail to maintain any such required offices or
agencies, such presentations, surrenders, notices and demands may be made or
served at the office of the Trustee and the Issuer hereby appoints the Trustee
such agent as its agent to receive all such presentations, surrenders, notices
and demands.
The Issuer may from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where, subject to the
limitations applicable to Global Securities, the Securities may be presented or
surrendered for any or all such purposes, and may from time to time rescind such
designation. The Issuer will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such office
or agency.
The Trustee shall initially act as Paying Agent for the Securities.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Issuer or any of its Affiliates shall at any time act as
Paying Agent, it will, on or before each due date of the principal of, premium,
if any, or interest on, any of the Securities, segregate and hold in trust for
the benefit of the Holders entitled thereto a sum sufficient to pay the
principal, premium, if any, interest or the Tax Redemption Price or Additional
Amounts, if applicable, 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.
If the Issuer or any of its Affiliates is not acting as Paying
Agent, the Issuer will, on or before each due date of the principal of, or
interest on, any of the Securities, deposit with a Paying Agent a sum in
immediately available funds sufficient to pay the principal, premium, if any,
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, if any, or interest, and (unless
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such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of
such action or any failure so to act.
If the Issuer is not acting as Paying Agent, the Issuer 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:
(a) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on, the Securities 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;
(b) give the Trustee notice of any Default by the Issuer or
the Parent Guarantor (or any other obligor upon the Securities) in the
making of any payment of principal, premium, if any, or interest on the
Securities;
(c) 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; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer 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 Issuer 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 Issuer, in trust for the payment of the principal of, premium, if
any, or interest on, any Security and remaining unclaimed for two years after
such principal, premium, if any, or interest has become due and payable shall
promptly be paid to the Issuer on Issuer Request, or (if then held by the
Issuer) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer 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
Issuer cause to be published once, in the
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New York Times and The Wall Street Journal (national edition), and mail to each
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification, publication and mailing, any unclaimed balance of such money then
remaining will promptly be repaid to the Issuer.
Section 1004. Corporate Existence.
Subject to Article Eight, the Issuer and the Parent Guarantor shall
do or cause to be done all things necessary to preserve and keep in full force
and effect the corporate existence and related rights and franchises (charter
and statutory) of the Parent Guarantor, the Issuer and the Issuer's
Subsidiaries; provided, however, that the Parent Guarantor, the Issuer and the
Issuer's Subsidiaries shall not be required to preserve any such right or
franchise or the corporate existence of any such Subsidiary if the Board of
Directors of the Issuer shall determine that the preservation thereof is no
longer necessary or desirable in the conduct of the business of the Parent
Guarantor, the Issuer and the Issuer's Subsidiaries taken as a whole and that
the loss thereof would not reasonably be expected to have a material adverse
effect on the ability of the Issuer or the Parent Guarantor to perform its
obligations hereunder.
Section 1005. Payment of Taxes and Other Claims.
The Issuer and the Parent Guarantor shall pay or discharge or cause
to be paid or discharged, on or before the date the same shall become due and
payable, (a) all taxes, assessments and governmental charges levied or imposed
upon the Issuer, the Parent Guarantor, or any of the Issuer's Subsidiaries shown
to be due on any return of the Issuer, the Parent Guarantor or any of the
Issuer's Subsidiaries or otherwise assessed or upon the income, profits or
property of the Issuer, the Parent Guarantor or any of the Issuer's Subsidiaries
if failure to pay or discharge the same could reasonably be expected to have a
material adverse effect on the ability of the Issuer or the Parent Guarantor to
perform its obligations hereunder and (b) all lawful claims for labor, materials
and supplies, which, if unpaid, would by law become a Lien upon the property of
the Issuer, the Parent Guarantor or any of the Issuer's Subsidiaries, except for
any Lien permitted to be incurred under Section 1007, if failure to pay or
discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Issuer or the Parent Guarantor to perform its
obligations hereunder; provided, however, that the Issuer and the Parent
Guarantor or any of the Issuer's Subsidiaries shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Issuer and the Parent Guarantor) are being maintained in accordance with
GAAP.
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Section 1006. Maintenance of Properties.
The Issuer and the Parent Guarantor shall cause all material
properties owned by the Issuer, the Parent Guarantor or any of the Issuer's
Subsidiaries or used or held for use in the conduct of their respective business
to be maintained and kept in good condition, repair and working order (ordinary
wear and tear excepted) and supplied with all necessary equipment and will cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the reasonable judgment of the Issuer and the
Parent Guarantor may be consistent with sound business practice and necessary so
that the business carried on in connection therewith may be properly conducted
at all times; provided, however, that nothing in this Section shall prevent the
Issuer and the Parent Guarantor from discontinuing the maintenance of any of
such properties if such discontinuance is, in the reasonable judgment of the
Issuer and the Parent Guarantor, desirable in the conduct of the business of the
Issuer, the Parent Guarantor and the Issuer's Subsidiaries, taken as a whole,
and not reasonably expected to have a material adverse effect on the ability of
the Issuer or the Parent Guarantor to perform its obligations hereunder;
provided further, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary or any properties or assets in compliance with the
terms of this Indenture.
Section 1007. Limitation on Liens.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, Incur any Lien upon any property or assets of the Issuer or any Restricted
Subsidiary, now owned or hereinafter acquired, to secure any Debt without
making, or causing such Restricted Subsidiary to make, effective provision for
securing the Securities (and, if the Issuer shall so determine, any other Debt
of the Issuer which is not subordinate in right of payment to the Securities)
(x) equally and ratably with (or prior to) such Debt as to such property or
assets for so long as such Debt shall be so secured, or (y) in the event such
Debt is subordinate in right of payment to the Securities, prior to such Debt as
to such property or assets for so long as such Debt shall be so secured.
The foregoing restrictions will not apply to:
(1) Liens securing only the Securities or the Parent
Guaranties;
(2) Liens in favor of only the Parent Guarantor, the Issuer or
a Restricted Subsidiary;
(3) Liens existing on the date of this Indenture;
(4) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Issuer or a Restricted
Subsidiary or
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becomes a Restricted Subsidiary (and not in anticipation of or in
connection with such event); provided that the Debt secured by such Lien
is otherwise permitted to be Incurred under this Indenture;
(5) Liens on property existing immediately prior to the time
of acquisition thereof from a non-Affiliate (and not Incurred in
anticipation of or in connection with the financing of such acquisition);
provided that the Debt secured by such Lien is otherwise permitted to be
Incurred under this Indenture;
(6) Liens to secure Debt Incurred for the purpose of financing
all or any part of the purchase price or the cost of construction or
improvement of the property subject to such Liens (including carrying
charges) and, in the case of a Restricted Subsidiary all or substantially
all of whose assets consist of such property, any Lien on ownership
interests or investments in such Restricted Subsidiary Incurred or assumed
in connection with the acquisition or construction of such property;
provided that the Incurrence of such Debt is otherwise permitted under
this Indenture and such Debt is Incurred prior to, at the time of, or
within 180 days after, the acquisition of such property, the completion of
such construction or the making of such improvements;
(7) Liens on property of the Issuer or any of its Restricted
Subsidiaries in favor of the United States of America or any state
thereof, or any instrumentality of either, to secure certain payments
pursuant to any contract or statute;
(8) Liens for taxes or assessments or other governmental
charges or levies which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted or for which a
reserve or other appropriate provision, if any, as shall be required in
accordance with GAAP shall have been made;
(9) Liens to secure obligations under workmen's compensation,
temporary disability, social security, retiree health or similar laws or
under unemployment insurance;
(10) Liens Incurred to secure the performance of statutory
obligations, bids, tenders, leases, contracts (other than contracts for
the repayment of Debt), surety or appeal bonds, performance or
return-of-money bonds or other obligations of a like nature Incurred in
the ordinary course of business;
(11) Judgment and attachment Liens not giving rise to a
Default or Event of Default;
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(12) Any Lien arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods in the ordinary
course of business in accordance with industry practice;
(13) Liens securing documentary letters of credit; provided
such Liens attach only to the property or goods to which such letter of
credit relates;
(14) Liens arising from filing financing statements under the
Uniform Commercial Code for precautionary purposes in connection with true
leases of personal property that are otherwise permitted under this
Indenture and under which the Parent Guarantor, the Issuer or any
Restricted Subsidiary is a lessee; or
(15) Liens to secure Debt Incurred to extend, renew, refinance
or refund (or successive extensions, renewals, refinancings or
refundings), in whole or in part, Debt secured by any Lien referred to in
the foregoing clauses (1) through (14) inclusive, so long as such Lien
does not extend to any additional property (other than property
attributable to improvements, alterations and repairs) and the principal
amount of the Debt so secured pursuant to this clause (15) shall not
exceed the principal amount of Debt so extended, renewed, refinanced or
refunded (assuming all available amounts were borrowed) plus the aggregate
amount of premiums, other payments, costs and expenses required to be paid
or Incurred in connection with such extension, renewal, refinancing or
refunding at the time of such extension, renewal, refinancing or
refunding.
In addition to the foregoing, the Issuer and its Restricted
Subsidiaries may Incur a Lien to secure any Debt, without securing the
Securities, if, after giving effect thereto, the sum, without duplication, of
(i) the aggregate principal amount of all outstanding Debt secured by Liens
Incurred by the Issuer and its Restricted Subsidiaries (with the exception of
secured Debt which is excluded pursuant to clauses (1) through (15) inclusive of
this Section 1007) and (ii) the aggregate amount of all Attributable Debt of all
sale and leaseback transactions involving Principal Properties (with the
exception of Attributable Debt excluded pursuant to clauses (1) through (5)
inclusive of Section 1008) does not exceed 10% of Consolidated Net Tangible
Assets (the "Lien Basket"); provided, however, that the Lien Basket shall be
reduced, without duplication, by the amount of outstanding Debt Incurred from
time to time pursuant to the Debt Basket.
Section 1008. Limitation on Sale and Leaseback Transactions.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, enter into any arrangement with any Person providing for the leasing by the
Issuer or any Restricted Subsidiary of any Principal Property of the Issuer or
any Restricted Subsidiary,
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which Principal Property has been or is to be sold or transferred by the Issuer
or such Restricted Subsidiary to such Person (herein referred to as a "sale and
leaseback transaction"), unless, after giving effect thereto, the sum, without
duplication, of (i) the aggregate amount of all Attributable Debt in respect of
all such sale and leaseback transactions involving Principal Properties (with
the exception of Attributable Debt excluded pursuant to clauses (1) through (5)
inclusive of this Section 1008) and (ii) the aggregate principal amount of all
outstanding Debt secured by Liens Incurred by the Issuer and its Restricted
Subsidiaries (with the exception of secured Debt which is excluded pursuant to
clauses (1) through (15) inclusive of Section 1007) does not exceed 10% of
Consolidated Net Tangible Assets (the "Leaseback Basket").
This covenant shall not apply to, and there shall be excluded from
Attributable Debt in any computation under this covenant or under Section 1007,
Attributable Debt with respect to any sale and leaseback transaction if:
(1) The lease in such sale and leaseback transaction is for a
period, including renewals, of not more than three years;
(2) Such sale and leaseback transaction is entered into in
respect of a Principal Property within 180 days of the acquisition thereof
or the completion of construction and commencement of operation thereof,
whichever is later;
(3) The proceeds of the sale or transfer of the Principal
Property in such sale and leaseback transaction are at least equal to the
Fair Market Value of such Principal Property (as determined in good faith
by the Board of Directors of the Issuer) and the Issuer or a Restricted
Subsidiary within 180 days after such sale or transfer applies to the
retirement of Funded Debt that is not subordinated to the Securities or
the Parent Guaranties an amount equal to the greater of (a) the net
proceeds of such sale and (b) the Attributable Debt in respect of such
sale and leaseback transaction;
(4) The Issuer or a Restricted Subsidiary applies the net
proceeds of the sale or transfer of the Principal Property in such sale
and leaseback transaction to an investment in another Principal Property
within 180 days prior or subsequent to such sale or transfer; provided,
however, that this exception shall apply only if such proceeds invested in
such other Principal Property shall not exceed the total acquisition,
alteration, repair and construction cost of the Issuer or any Restricted
Subsidiary in such other Principal Property less amounts secured by any
purchase money or construction mortgage on such other Principal Property;
or
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(5) Such sale and leaseback transaction is entered into between the Issuer
and a Restricted Subsidiary, between the Parent Guarantor and the Issuer,
or between Restricted Subsidiaries.
Section 1009. Limitation on Restricted Subsidiary Funded Debt.
The Issuer shall not permit any Restricted Subsidiary of the Issuer
to Incur any Funded Debt. Notwithstanding the foregoing, any Restricted
Subsidiary may Incur the following Funded Debt:
(1) Funded Debt of any Restricted Subsidiary constituting
Existing Funded Debt;
(2) Funded Debt Incurred by a Special Purpose Funding
Subsidiary, provided that such Restricted Subsidiary remains at all times
a Special Purpose Funding Subsidiary;
(3) Funded Debt owed by a Restricted Subsidiary to the Parent
Guarantor, the Issuer or a Wholly-Owned Subsidiary of the Issuer (provided
that such Funded Debt is at all times held by the Parent Guarantor, the
Issuer or a Person which is a Wholly-Owned Subsidiary of the Issuer);
provided, however, that upon either (a) the transfer or other disposition
by the Parent Guarantor, the Issuer or such Wholly-Owned Subsidiary of any
Funded Debt so permitted to a Person other than the Parent Guarantor, the
Issuer or another Wholly-Owned Subsidiary of the Issuer, or (b) the
issuance (other than directors' qualifying shares), sale, lease, transfer
or other disposition of shares of Capital Stock (including by
consolidation or merger) of such Wholly-Owned Subsidiary to a Person other
than the Parent Guarantor, the Issuer or another such Wholly-Owned
Subsidiary, the provisions of this clause (3) shall no longer be
applicable to such Funded Debt and such Funded Debt shall be deemed to
have been Incurred at the time of such transfer or other disposition;
(4) Funded Debt Incurred by a Person before such Person became
a Restricted Subsidiary in an acquisition by the Issuer from a
non-Affiliate (whether through a stock acquisition, merger, consolidation
or otherwise) after the date of this Indenture (provided such Funded Debt
was not Incurred in anticipation of or in connection with and was
outstanding prior to such acquisition);
(5) Funded Debt Incurred in connection with the acquisition,
purchase, improvement or development of property or assets used or held by
any Subsidiary of the Issuer prior to, or within 180 days after, the time
of such acquisition, purchase, improvement or development; or
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(6) Funded Debt Incurred to extend, renew, refinance or refund (or
successive extensions, renewals, refinancings or refundings) in whole or
in part, of any Funded Debt referred to in the foregoing clauses (1), (4)
and (5), provided that the principal amount of the Funded Debt Incurred
pursuant to this clause (6) shall not exceed the principal amount of
Funded Debt so extended, renewed, refinanced or refunded plus the
aggregate amount of premiums, other payments, costs and expenses required
to be paid or incurred in connection with such extension, renewal,
refinancing or refunding at the time of such extension, renewal,
refinancing or refunding.
In addition to the foregoing, any Restricted Subsidiary may Incur
Funded Debt if, immediately after the Incurrence thereof, the aggregate
principal amount of such Funded Debt plus all other Funded Debt (without
duplication) of all Restricted Subsidiaries of the Issuer then outstanding
(other than Funded Debt permitted by clauses (1) through (6) of this Section
1009) does not exceed 10% of Consolidated Net Tangible Assets (the "Debt
Basket"); provided, however, that the Debt Basket shall be reduced, without
duplication, by the amount of Debt secured pursuant to the Lien Basket and by
the amount of Attributable Debt Incurred pursuant to the Leaseback Basket, in
each case to the extent such secured Debt and such Attributable Debt may from
time to time be outstanding.
Section 1010. Limitation on Restricted Payments.
(a) Until such time as the Securities are rated Baa2 by Moody's or
BBB by S&P, or higher, the Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any
distribution in respect of, the Issuer's or any Restricted
Subsidiary's Capital Stock or other Equity Interests, except to the
extent any such dividend or distribution is actually received by the
Issuer or a Subsidiary of the Issuer;
(ii) purchase, redeem or otherwise acquire or retire for
consideration any Capital Stock or other Equity Interests of the
Issuer or a Restricted Subsidiary, except to the extent such
consideration is actually received by the Issuer or a Subsidiary of
the Issuer; or
(iii) voluntarily purchase, redeem or otherwise acquire
or retire for consideration, prior to a scheduled mandatory sinking
fund payment date, mandatory amortization or mandatory prepayment or
maturity date (including, but not limited to, by legal defeasance),
any Debt of the Issuer that is junior in right of payment to the
Securities, other than in connection
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with the refinancing of such Debt to the extent permitted by this
Indenture (each such declaration, distribution, purchase,
redemption, acquisition or retirement described in clauses (i)
through (iii) being referred to as a "Restricted Payment") if, at
the time of such action, or after giving effect to such Restricted
Payment, (1) an Event of Default shall have occurred and be
continuing; (2) the Issuer could not incur $1.00 of additional Debt
pursuant to the Debt Basket under Section 1009; or (3) such
Restricted Payment, together with the aggregate amount of all other
Restricted Payments declared or made after the Issue Date, exceeds
the sum of:
(A) 50% of the aggregate cumulative Consolidated
Net Income of the Issuer accrued on a cumulative basis during
the period beginning on September 29, 1996 and ending on the
last day of the Issuer's last fiscal quarter ending prior to
the date of the Restricted Payment (or, if such aggregate
cumulative Consolidated Net Income shall be a loss, minus 100%
of such loss);
(B) the aggregate Net Cash Proceeds and the Fair
Market Value (as determined in good faith by the Board of
Directors of the Issuer) of marketable securities and other
property, if any, received by the Issuer or a Wholly-Owned
Subsidiary of the Issuer (other than from a Restricted
Subsidiary) from the issuance and sale of either Capital Stock
(other than Redeemable Capital Stock) or Debt that is
convertible into Capital Stock, to the extent such Debt is
converted into Capital Stock after the Issue Date;
(C) the Fair Market Value (as determined in good
faith by the Board of Directors of the Issuer) of any shares
of Capital Stock (other than Redeemable Capital Stock) or
options in respect thereof of the Issuer issued after the
Issue Date, pursuant to a plan or other arrangement approved
by the Compensation Committee of the Board of Directors of the
Issuer, to or for the benefit of any employee or director of
the Issuer or any Subsidiary of the Issuer or to or by any
stock ownership plan or similar trust for the benefit of any
such employee or director, in each case to the extent such
Fair Market Value is includable as compensation expense in the
computation of Consolidated Net Income;
(D) 50% of the aggregate Net Cash Proceeds
received after September 29, 1996 by the Issuer, or a
Wholly-Owned Subsidiary of the Issuer, from an Asset Sale; and
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(E) $50,000,000.
(b) Notwithstanding the foregoing, so long as no Event of Default
shall have occurred and be continuing, the foregoing provisions shall not
prohibit the following actions:
(i) the payment of any dividend within 60 days after the
date of the declaration, if at the date of declaration thereof such
payment would comply with such provisions, or
(ii) the declaration or payment of any dividend on or
purchase, redemption or retirement of shares of Capital Stock
payable solely in shares of Capital Stock (other than Redeemable
Stock) of the Issuer, or any Subsidiary which does not constitute a
"significant subsidiary" of the Issuer within the meaning of Rule
1-02(w) of Regulation S-X promulgated under the Exchange Act and any
successor provision thereto.
Section 1011. Provision of Financial Statements.
Whether or not the Issuer is subject to Section 13(a) or 15(d) of
the Exchange Act (or any successor provision thereto), the Issuer will, to the
extent permitted under the Exchange Act, file with the Commission the annual
reports, quarterly reports and other documents which the Issuer would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) (or
any successor provision thereto) if the Issuer were so subject, such documents
to be filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Issuer would have been required so to file
such documents if the Issuer were so subject. The Issuer also will: (1) within
15 days of each Required Filing Date, file with the Trustee copies of the annual
reports, quarterly reports and other documents (excluding exhibits) which the
Issuer would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Issuer were subject to such Sections;
and (2) if filing such documents by the Issuer with the Commission is not
permitted under the Exchange Act, promptly upon written request supply copies of
such documents to any Holder. The Issuer will be deemed to have satisfied the
requirements set forth above if (i) the Parent Guarantor prepares, files, mails
and supplies reports and other documents prepared on a Consolidated basis of the
types required above, in each case within the applicable time periods and (ii)
the Issuer is not required to file such reports and other documents separately
under the applicable rules and regulations of the Commission (after giving
effect to any exemptive relief) because of the filings by the Parent Guarantor.
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Section 1012. Statement by Officers as to Default.
(a) The Issuer will deliver to the Trustee, on or before a date not
more than 120 days after the end of each fiscal year of the Issuer ending after
the date hereof, a written statement signed by two executive officers of the
Issuer, one of whom shall be the principal executive officer, principal
financial officer or principal accounting officer of the Issuer, as to
compliance herewith, including whether or not, after a review of the activities
of the Issuer during such year and of the Issuer's and the Parent Guarantor's
performance under this Indenture, to the best knowledge, based on such review,
of the signers thereof, the Issuer and the Parent Guarantor have fulfilled all
of their respective obligations and are in compliance with all conditions and
covenants under this Indenture throughout such year, and, if there has been a
Default specifying each Default and the nature and status thereof and any
actions being taken by the Issuer with respect thereto.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Debt of the Issuer or any Subsidiary gives any notice or
takes any other action with respect to a claimed default relating to a Debt in
an amount aggregating in excess of $25,000,000, the Issuer shall deliver to the
Trustee by registered or certified mail or facsimile transmission followed by
hard copy an Officers' Certificate specifying such Default, Event of Default,
notice or other action, the status thereof and what actions the Issuer is taking
or proposes to take with respect thereto, within five Business Days of becoming
aware of its occurrence.
Section 1013. Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with any
covenant or provision set forth in Sections 1007 through 1012 inclusive, if,
before or after the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
shall, by Act of such Holders, waive such compliance in such instance with such
covenant or provision, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
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ARTICLE ELEVEN
PARENT GUARANTIES OF SECURITIES
Section 1101. Unconditional Parent Guaranties.
The Parent Guarantor hereby irrevocably and unconditionally
guarantees to each Holder of a Security authenticated and delivered by the
Trustee, and to the Trustee, the performance under, and punctual payment of the
principal of, premium, if any, and interest on (and, if applicable, the Tax
Redemption Price and Additional Amounts in respect of) such Security, when and
as the same shall become due and payable, whether upon maturity, acceleration,
call for redemption or otherwise in accordance with the terms of such Security
and of this Indenture.
The Parent Guarantor hereby agrees that its obligations hereunder
shall be absolute and unconditional and as if it were principal debtor and not
merely surety, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Security or this Indenture, any
failure to enforce the provisions of any such Security or this Indenture, any
waiver, modification, or indulgence granted to the Issuer with respect thereto,
by the Holder of such Security or the Trustee, or any other circumstances which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor; provided, however, that, notwithstanding the foregoing, no such
waiver, modification, indulgence or circumstance shall, without the consent of
the Parent Guarantor, increase the principal amount of a Security, the premium,
if any, or the interest rate thereon (and, if applicable, the Tax Redemption
Price or Additional Amounts in respect thereof) except as provided in such
Security. The Parent Guarantor hereby agrees that these Parent Guaranties shall
be enforceable without any demand, suit or proceeding first against the Issuer.
The Parent Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of merger or bankruptcy of the
Issuer, any right to require a proceeding first against the Issuer, protest or
notice with respect to any such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that the Parent Guaranties will not be
discharged as to any such Security except by payment in full of the principal
of, premium, if any, and interest on such Security or as set forth below.
The Parent Guaranties set forth in this Section 1101 shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been manually signed
by the Trustee.
If the obligations of the Issuer under this Indenture are assumed by
an acquiring or successor Person (other than a direct or indirect Subsidiary of
the Parent Guarantor) pursuant to Section 801 or upon the release of the Parent
Guaranties in
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accordance with the provisions of Section 902, the Parent Guaranties shall
terminate (without any action or consent required by the Holders or the Trustee)
and be of no further force and effect and the obligations of the Parent
Guarantor thereunder and under the Indenture shall be released and the Parent
Guarantor shall cease to be a party to, or have rights or obligations under,
this Indenture.
Section 1102. Execution of Parent Guaranties.
Subject to Section 201, the Parent Guarantor hereby agrees to
execute the Parent Guaranties in substantially the form set forth in Section
1103 to be endorsed on each Security authenticated and delivered by the Trustee.
The Parent Guaranties shall be executed and the corporate seal of the Parent
Guarantor shall be affixed, prior to the authentication of the Security on which
it is endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Parent
Guaranties on behalf of the Parent Guarantor. Such signature may be a manual or
facsimile signature and may be imprinted or otherwise reproduced on the Parent
Guaranties, and for that purpose the Parent Guarantor may adopt and use the
facsimile signature of any such officer, and in case any such officer who shall
have signed the Parent Guaranties shall cease to be a duly authorized officer of
the Parent Guarantor before the Security on which the Parent Guaranties is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security nevertheless may be authenticated and delivered
or disposed of as though the officer who signed the Parent Guaranties had not
ceased to be a duly authorized director or attorney of the Parent Guarantor.
Section 1103. Form of Parent Guaranties.
The Parent Guaranties to be endorsed on the Securities shall,
subject to Section 201, be in substantially the form set forth below:
[FORM OF PARENT GUARANTIES]
GUARANTY OF U.S. INDUSTRIES, INC.
For value received, U.S. Industries, Inc., a Delaware corporation
(the "Parent Guarantor"), hereby irrevocably and unconditionally guarantees to
the Holder of the Security upon which this Parent Guaranty is endorsed, the
performance of the Issuer under such Security and the due and punctual payment
of the principal of, premium, if any, and interest on (and, if applicable, the
Tax Redemption Price and Additional Amounts in respect of) such Security, when
and as the same shall become due and payable, whether upon maturity,
acceleration, call for redemption or otherwise in accordance with the terms of
such Security and of the Indenture referred to therein.
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The Parent Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional and as if it were principal debtor and not merely
surety, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or said Indenture, any failure
to enforce the provisions of such Security or said Indenture, any waiver,
modification or indulgence granted to the Issuer with respect thereto by the
Holder of such Security or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor;
provided, however, that, notwithstanding the foregoing, no such waiver,
modification, indulgence or circumstance shall, without the consent of the
Parent Guarantor, increase the principal amount of such Security, the premium,
if any, or the interest rate thereon (and, if applicable, the Tax Redemption
Price or Additional Amounts in respect thereof) except as provided in such
Security. The Parent Guarantor hereby agrees that this Parent Guaranty shall be
enforceable without any demand, suit or proceeding first against the Issuer. The
Parent Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of merger or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest or notice with
respect to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Parent Guaranty will not be discharged
except by payment in full of the principal of, premium, if any, and interest on
such Security or pursuant to the provisions of Articles Four, Eight, Nine,
Eleven and Twelve of the Indenture providing for release of this Parent Guaranty
under the conditions provided for therein.
This Parent Guaranty shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on
such Security shall have been signed manually by the Trustee under the Indenture
referred to in such Security. Terms used herein which are defined in such
Indenture shall have the respective meanings assigned thereto in the Indenture.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the Parent Guarantor has caused this instrument
to be duly executed by the manual or facsimile signature of its authorized
officers and its corporate seal to be affixed or reproduced hereon.
Dated: _______________ U.S. INDUSTRIES, INC.
By:
Name:
Title:
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[SEAL]
Attest:
Authorized Officer
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance.
The Issuer may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 1202 or Section 1203 be
applied to all of the Outstanding Securities (the "Defeased Securities"), upon
compliance with the conditions set forth below in this Article Twelve.
Section 1202. Defeasance and Discharge.
Upon the Issuer's exercise under Section 1201 of the option set
forth in this Section 1202, the Issuer, the Parent Guarantor and any other
obligor upon the Securities, if any, shall be deemed to have been discharged
from its obligations with respect to the Defeased Securities and the Parent
Guaranties on the date the conditions set forth in Section 1204 below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer, the Parent Guarantor and any other obligor upon the Securities
shall be deemed to have paid and discharged the entire Debt represented by the
Defeased Securities, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1205 and the other Sections of this Indenture
referred to in clauses (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Issuer and upon Issuer
Request, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Securities to receive, solely
from the trust fund described in Section 1204 and as more fully set forth in
such Section, payments in respect of the principal of premium, if any, and
interest on, such Securities, when such payments are due from the trust referred
to below, (b) the Issuer's obligations with respect to such Defeased Securities
under Sections 304, 306, 307, 1002 and 1003, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, and (d) the defeasance
provisions under this Article Twelve. Subject to compliance with this Article
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Twelve, the Issuer may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203 with respect
to the Securities.
Section 1203. Covenant Defeasance.
Upon the Issuer's exercise under Section 1201 of the option set
forth in this Section 1203, the Issuer and the Parent Guarantor and any other
obligor upon the Securities, if any, shall be released from its obligations
under any covenant or provision contained or referred to in Sections 1005
through 1012 inclusive, and the provisions of Sections 801(a) and 801(b), with
respect to the Defeased Securities and the Parent Guaranties on and after the
date the conditions set forth in Section 1204 below are satisfied (hereinafter,
"covenant defeasance"), and the Defeased Securities shall thereafter be deemed
to be 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. For this purpose, such covenant defeasance means
that, with respect to the Defeased Securities, the Issuer and the Parent
Guarantor and any other obligor upon the Securities, if any, may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or Article, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or Article or by
reason of any reference in any such Section or Article 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 501(c), but, except as specified
above, the remainder of this Indenture and such Defeased Securities shall be
unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Defeased Securities:
(1) The Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (a)
cash in United States dollars, (b) U.S. Government Obligations or (c) a
combination thereof, which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms and with no
further reinvestment will provide, not later than one day before the due
date of any payment, such amounts as will be sufficient, in the opinion of
a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, the principal
of, premium, if any, and interest
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on, the Defeased Securities, on the Stated Maturity of such principal,
premium, if any, or interest. For this purpose, "U.S. Government
Obligations" means securities that are (i) direct obligations of the
United States of America for the timely payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such U.S. Government Obligation, or a
specific payment of principal of, premium, if any, or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or
the specific payment of principal of, premium, if any, or interest on the
U.S. Government Obligation evidenced by such depository receipt;
(2) In the case of an election under Section 1202, the Issuer
shall have delivered to the Trustee an Opinion of Independent Counsel to
the Issuer in the United States stating that (A) the Issuer has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (B) 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 Independent Counsel in the United States
shall confirm that, the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result
of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred;
(3) In the case of an election under Section 1203, the Issuer
shall have delivered to the Trustee an Opinion of Independent Counsel in
the United States to the effect that the Holders of the Outstanding
Securities 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;
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Sections 501(f) and
(g) are concerned, at any time during the period ending on the 91st day
after the date of
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deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit);
(5) Such defeasance or covenant defeasance shall 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 Issuer,
the Parent Guarantor or any of their respective Subsidiaries is a party or
by which it is bound;
(6) The Issuer shall have delivered to the Trustee an Opinion
of Independent Counsel in the United States to the effect that after the
91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
(7) The Issuer shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Issuer
with the intent of preferring the holders of the Securities or the Parent
Guaranties over the other creditors of the Issuer or the Parent Guarantor
with the intent of defeating, hindering, delaying or defrauding creditors
of the Issuer, the Parent Guarantor or others; and
(8) No event or condition shall exist that would prevent the
Issuer or the Parent Guarantor from making payments of the principal of,
premium, if any, and interest on the Securities on the date of such
deposit or at any time ending on the 91st day after the date of such
deposit; and
(9) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Independent Counsel, each stating
that all conditions precedent required for either the defeasance under
Section 1202 or the covenant defeasance under Section 1203, have been
complied with.
Opinions of Counsel or Opinions of Independent Counsel required to
be delivered under this Section shall be in form and substance reasonably
satisfactory to the Trustee and may have qualifications customary for opinions
of the type required and counsel delivering such opinions may rely on
certificates of the Issuer or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
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Section 1205. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 1204 in respect of the
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (excluding the Issuer or
any of its Affiliates acting as Paying Agent), as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in
respect of principal and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is imposed, assessed or for the account of the Holders of
the Defeased Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
any United States
dollars or U.S. Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect defeasance or covenant defeasance.
Section 1206. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 1202 or 1203,
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 Issuer's obligations under this Indenture and the
Securities and the Parent Guarantor's obligations under the Parent Guaranties
shall be revived and reinstated, with present and prospective effect, as though
no deposit had occurred pursuant to Section 1202 or 1203, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
United States dollars or U.S. Government Obligations in accordance with Section
1202 or 1203, as the case may be; provided, however, that if the Issuer makes
any payment to the Trustee or Paying Agent of principal, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of the
Securities and the Issuer shall be subrogated to
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the rights of the Holders of such Securities to receive such payment from the
United States dollars and U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE THIRTEEN
TAX REDEMPTION OF SECURITIES
Section 1301. Tax Redemption.
(a) Upon the occurrence of a "Tax Event," the Issuer may, at its
option and subject to the procedures set forth below, redeem (a "Tax
Redemption") the Securities, in whole only, at any time (the "Tax Redemption
Date") at a redemption price (the "Tax Redemption Price") of 100% of the
principal amount thereof plus accrued but unpaid interest to the date fixed for
redemption.
(b) A "Tax Event" occurs if, as the result of any change in or any
amendment to the laws, including any applicable double taxation treaty or
convention, of the United Kingdom (or any Other Jurisdiction) or of any
political subdivision or taxing authority thereof, affecting taxation, or any
change in the application or interpretation of such laws, double taxation treaty
or convention, which change or amendment becomes effective on or
after the original issuance date of the Securities (or such later
date on which any assignee of the Issuer, Parent Guarantor or a successor
corporation to the Issuer or the Parent Guarantor becomes such as permitted
hereby), it is determined, by the Issuer, the Parent Guarantor or such assignee
(which terms, for purposes of the remainder of this paragraph, include any
successor thereto) that (i) the Issuer, the Parent Guarantor or an assignee
would be required to make additional payments in respect of principal, premium,
if any, or interest on the next succeeding date for the payment thereof, or (ii)
based upon an Opinion of Independent Counsel to the Issuer, the Parent Guarantor
or its assignee, as a result of any action taken by any taxing authority of, or
any action brought in a court of competent jurisdiction in, the United Kingdom
(or an Other Jurisdiction), or any political subdivision or taxing authority
thereof or therein (whether or not such action was taken or brought with respect
to the Issuer, the Parent Guarantor or an assignee), which action is taken or
brought on or after the original issuance date of the Securities (or such later
date on which a corporation becomes a successor or an assignee), the
circumstances described in clause (i) would exist.
(c) A Tax Redemption shall be for not less than all of the
Securities.
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Section 1302. Applicability of Article.
Tax Redemption of Securities at the election of the Issuer, the
Parent Guarantor or otherwise shall be made in accordance with the provisions of
the Securities and this Article Thirteen.
Section 1303. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem Securities pursuant to Section
1301 shall be evidenced by a Board Resolution, an Issuer Order and an Officer's
Certificate. In case of any redemption at the election of the Issuer, the Issuer
shall, not less than 45 nor more than 60 days prior to the Tax Redemption Date
fixed by the Issuer (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Tax Redemption Date.
Section 1304. Notice of Tax Redemption.
In order to redeem the Securities, notice of Tax Redemption must be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Tax Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of Tax Redemption shall state:
(a) the Tax Redemption Date;
(b) the Tax Redemption Price;
(c) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Tax Redemption Price;
(d) that on the Tax Redemption Date the Tax Redemption Price will
become due and payable upon each such Security, and that (unless the Issuer
shall default in payment of the Tax Redemption Price) interest thereon shall
cease to accrue on and after said date;
(e) subject to procedures with respect to Global Securities, the
place or places where such Securities are to be surrendered for payment of the
Tax Redemption Price; and
(f) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's written request, by
the Trustee in the
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name and at the expense of the Issuer. If the Issuer elects to give notice of
redemption, it shall provide the Trustee with a certificate stating that such
notice has been given in compliance with the requirements of this Section 1304.
The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for repurchase as a whole
shall not affect the validity of the proceedings for the redemption of any other
Security.
Section 1305. Deposit of Tax Redemption Price.
On or prior to any Tax Redemption Date, the Issuer shall deposit
with the Trustee or with a Paying Agent (or, if the Issuer or any of its
Affiliates is acting as Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in immediately available funds sufficient to
pay the Tax Redemption Price of, and (except if the Tax Redemption Date shall be
an Interest Payment Date or Special Payment Date) accrued interest on, all of
the Securities which are to be redeemed on that date. All money earned on funds
held in trust by the Trustee or any Paying Agent shall be remitted to the
Issuer.
Section 1306. Securities Payable on Tax Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Tax Redemption Date, become due and payable at
the Tax Redemption Price therein specified and from and after such date (unless
the Issuer shall default in the payment of the Tax Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Tax Redemption Price together with accrued interest
to the Tax Redemption Date; provided, however, that installments of interest
whose Stated Maturity is on or prior to the Tax Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates and Special Record Dates
according to their terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Tax Redemption Date at the rate prescribed
therefore in the Security.
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ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
Section 1401. Applicability of Article.
The Securities are redeemable at the election of the Issuer before
their Stated Maturity and shall be redeemable in accordance with their terms and
(except as otherwise provided by Article Thirteen upon a Tax Redemption of the
Securities) in accordance with this Article Fourteen and Section 202.
Section 1402. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities pursuant to
Section 1401 shall be evidenced by a Board Resolution, an Issuer's Order and an
Officer's Certificate. In case of any redemption at the election of the Issuer,
the Issuer shall, not less than 45 or more than 60 days prior to the Redemption
Date fixed by the Issuer (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date, of the
principal amount of Securities to be redeemed and, if applicable, of the tenor
of the Securities to be redeemed.
Section 1403. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities or any integral
multiple thereof) of the principal amount of Securities of a denomination larger
than the minimum authorized denomination for Securities.
The Trustee shall promptly notify the Issuer in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any
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Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
Section 1404. Notice of Redemption.
In order to redeem the Securities, notice of redemption must be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address appearing in the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including, subject to Section 309, the CUSIP number) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, that
(unless the Issuer shall default in payment of the Redemption Price)
interest thereon shall cease to accrue on and after said date; and
(5) subject to procedures with respect to Global Securities,
the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer. If the Issuer elects to
give notice of redemption, it shall provide the Trustee with a certificate
stating that such notice has been given in accordance with the requirements of
this Section 1404.
The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for repurchase as a whole
shall not affect the validity of the proceedings for the redemption of any other
Security.
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Section 1405. Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer shall deposit with
the Trustee or with a Paying Agent (or, if the Issuer or any of its Affiliates
is acting as Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in immediately available funds sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date or a Special Payment Date) accrued interest on, all of the
Securities which are to be redeemed on that date. All money earned on funds held
in trust by the Trustee or any Paying Agent shall be remitted to the Issuer.
Section 1406. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Record Dates and Special
Record Dates according to their terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1407. Securities Redeemed in Part.
Subject to the provisions applicable to Global Securities, any
Security which is to be redeemed only in part shall be surrendered at a place of
payment therefor (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
USI AMERICAN HOLDINGS, INC.
By: /s/ Frank Reilly
Name: Frank Reilly
Title: Senior Vice President, Chief
Financial Officer
Attest: /s/ George H. MacLean
Name: George H. MacLean
Title: Senior Vice President,
General Counsel and Secretary
U.S. INDUSTRIES, INC.
By: /s/ Frank Reilly
Name: Frank Reilly
Title: Senior Vice President, Chief
Financial Officer
Attest: /s/ George H. MacLean
Name: George H. MacLean
Title: Senior Vice President,
General Counsel and Secretary
PNC BANK, NATIONAL ASSOCIATION
By: /s/ F.J. Deramo
Name: F.J. Deramo
Title: Vice President
Attest: /s/ Richard A. Ranii
Name: Richard A. Ranii
Title: Assistant Vice President
115
Annex A -- Form of Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 306(b) (i), (iii) and (v) of the Indenture)
PNC Bank, National Association
as Trustee
One Oliver Plaza, 27th Floor
210 Sixth Avenue
Pittsburgh, PA 15222-2602
Re: 7 1/4% Senior Notes due December 1, 2006 of
USI American Holdings, Inc. (the "Securities")
Reference is made to the Indenture dated as of December 12, 1996
(the "Indenture") among USI American Holdings, Inc. (the "Issuer"), U.S.
Industries, Inc. (the "Parent Guarantor") and PNC Bank, National Association, as
Trustee. Terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933 (the "Securities Act") are used
herein as so defined.
This certificate relates to U.S. $_______________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s)._____________________________
CERTIFICATE No(s).______________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is
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being effected pursuant to an effective registration statement under the
Securities Act, it is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities laws of the states
of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Issuer or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner
and any person acting on its behalf reasonably believed
that the Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as
regulated by the Association of International Bond
Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period,
then the requirements of Rule 904(c) (1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
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(A) the transfer is occurring after December 12, 1998 and is
being effected in accordance with the applicable amount, manner of sale
and notice requirements of Rule 144; or
(B) the transfer is occurring after December 12, 1999 and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Issuer.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer, the Parent Guarantor and the Initial
Purchaser.
Dated: [ ]
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
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Annex B -- Form of Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 306(b) (ii), (iii), (iv) and (v) of the
Indenture)
PNC Bank, National Association
as Trustee
One Oliver Plaza, 27th Floor
210 Sixth Avenue
Pittsburgh, PA 15222-2602
Re: 7 1/4% Senior Notes Due December 1, 2006 of
USI American Holdings, Inc. (the "Securities")
Reference is made to the Indenture dated as of December 12, 1996
(the "Indenture") among USI American Holdings, Inc. (the "Issuer"), U.S.
Industries, Inc. (the "Parent Guarantor") and PNC Bank, National Association, as
Trustee. Terms used herein and defined in the Indenture or in Rule 144A or Rule
144 under the U.S. Securities Act of 1933 (the "Securities Act") are used herein
as so defined.
This certificate relates to U.S. $_______________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security. In
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connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 144A or Rule
144 under the Securities Act and all applicable securities laws of the states of
the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after December 12, 1998 and is
being effected in accordance with the applicable amount, manner of sale
and notice requirements of Rule 144; or
(B) the transfer is occurring after December 12, 1999 and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Issuer.
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This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer, the Parent Guarantor and the Initial Purchaser.
Dated: [ ]
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
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Annex C -- Form of Unrestricted Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 306(c))
PNC Bank, National Association
as Trustee
One Oliver Plaza, 27th Floor
210 Sixth Avenue
Pittsburgh, PA 15222-2602
Re: 7 1/4% Senior Notes Due December 1, 2006 of
USI American Holdings, Inc. (the "Securities")
Reference is made to the Indenture dated as of December 12, 1996
(the "Indenture") among USI American Holdings, Inc. (the "Issuer"), U.S.
Industries, Inc. (the "Parent Guarantor") and PNC Bank, National Association, as
Trustee. Terms used herein and defined in the Indenture or in Rule 144 under the
U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to U.S. $_______________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged
for Securities bearing no Securities Act Legend pursuant to Section 306(c) of
the Indenture.
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In connection with such exchange, the Owner hereby certifies that the exchange
is occurring after December 12, 1999 and the Owner is not, and during the
preceding three months has not been, an affiliate of the Issuer. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer, the Parent Guarantor and the Initial
Purchaser.
Dated: [ ]
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
C-2
Annex D -- Form of Transfer Notice
TRANSFER NOTICE
[ ]
[ ]
[ ]
Re: USI American Holdings, Inc. (the "Issuer")--7 1/4%
Senior Notes Due December 1, 2006 (the "Notes")
Dear Sirs:
This certificate is delivered to request a transfer of $
principal amount of the Notes.
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
We represent, warrant and agree with you as follows with regard to the
Notes purchased by us and described in the Offering Memorandum, dated December
6, 1996 (the "Offering Memorandum").
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor," and we are acquiring the Notes not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes and invest in or purchase securities similar to the
Notes in the normal course of our business. We and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which
D-1
we are purchasing Notes to offer, sell or otherwise transfer such Notes prior to
the date which is three years after the later of the date of original issue and
the last date on which the Issuer or any affiliate of the Issuer was the owner
of such Notes (or any predecessor thereto) (the "Resale Restriction Termination
Date") only (a) to the Issuer, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) in a transaction
complying with the requirements of Rule 144A under the Securities Act, to a
person we reasonably believe is a qualified institutional buyer under Rule 144A
(a "QIB") that purchases for its own account or for the account of a QIB to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor," in each case in a
minimum principal amount of Notes of $250,000 or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all time within our or their control and in compliance with any applicable
state securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or other
transfer of the Notes is proposed to be made pursuant to clause (e) above prior
to the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
Issuer, U.S. Industries, Inc. (the "Parent Guarantor") and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" with the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act and that it is acquiring such Notes for investment purposes
and not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Issuer, the Parent Guarantor and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale Termination
Date of the Notes pursuant to clause (f) above to require the delivery of an
opinion of counsel, certifications and/or other information satisfactory to the
Issuer, the Parent Guarantor and the Trustee.
3. We have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of an investment in the
Notes, and we have received a copy of the Offering Memorandum.
4.We acknowledge that the Notes will bear a legend to the following effect
unless the Issuer determines otherwise consistently with applicable law;
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
FOREIGN SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
D-2
PARTICIPATION HEREIN MAY BE REOFFERED, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER.
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 THREE YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
ISSUER OF ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (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, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
A PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN 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 ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE PARENT GUARANTOR'S, THE ISSUER'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
D-3
CLAUSES (C), (D), (E), AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN THE CASE OF THE FOREGOING CLAUSE (E), A TRANSFER NOTICE
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE ISSUER, THE PARENT
GUARANTOR AND THE TRUSTEE, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
5. If we are acquiring any Notes as a fiduciary or agent for one or more
accounts, we represent that we have sole investment discretion with respect to
each such account and that we have full power to make the foregoing
acknowledgments, representations and agreements with respect to each such
account and as set forth in the "Transfer Restrictions" contained in the
Offering Memorandum.
Very truly yours,
----------------------------------
(Name of Institution)
By:_______________________________
(Authorized Person)
Name:__________________________
Title:____________________________
Receipt acknowledged as date set forth above.
- --------------------------------
[ ]
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