E-P ACQUISITION, INC.
AS ISSUER
THE GUARANTORS
NAMED HEREIN
AND
THE BANK OF NEW YORK
AS TRUSTEE
$220,000,000
9 3/8% SENIOR SUBORDINATED NOTES DUE 2008
INDENTURE
Dated as of February 24, 1998
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Other Definitions..............................................23
SECTION 1.03. Incorporation by Reference of TIA..............................24
SECTION 1.04. Rules of Construction..........................................24
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating................................................24
SECTION 2.02. Execution and Authentication; Authentication Agent.............28
SECTION 2.03. Registrar and Paying Agent.....................................28
SECTION 2.04. Paying Agent to Hold Money in Trust............................29
SECTION 2.05. Holder Lists...................................................29
SECTION 2.06. Transfer and Exchange..........................................29
SECTION 2.07. Book-entry Provisions for Global Notes.........................31
SECTION 2.08. Special Transfer Provisions....................................32
SECTION 2.09. Replacement Notes..............................................35
SECTION 2.10. Outstanding Notes..............................................35
SECTION 2.11. Treasury Notes.................................................36
SECTION 2.12. Temporary Notes................................................36
SECTION 2.13. Cancellation...................................................36
SECTION 2.14. Defaulted Interest.............................................36
SECTION 2.15. Record Date....................................................37
SECTION 2.16. CUSIP and CINS Numbers.........................................37
ARTICLE 3
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.01. Notices to Trustee.............................................37
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased.................38
SECTION 3.03. Notice of Redemption...........................................38
SECTION 3.04. Effect of Notice of Redemption.................................39
SECTION 3.05. Deposit of Redemption Price....................................39
SECTION 3.06. Notes Redeemed in Part.........................................39
SECTION 3.07. Redemption Provisions..........................................39
SECTION 3.08. Mandatory Offers...............................................40
i
PAGE
----
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes...............................................42
SECTION 4.02. Reports........................................................43
SECTION 4.03. Compliance Certificate.........................................43
SECTION 4.04. Stay, Extension and Usury Laws.................................44
SECTION 4.05. Limitation on Restricted Payments..............................44
SECTION 4.06. Corporate Existence............................................46
SECTION 4.07. Limitations on Additional Indebtedness.........................47
SECTION 4.08. Limitation on the Issuance of Capital Stock of Restricted
Subsidiaries................................................47
SECTION 4.09. Limitations on Layering Debt...................................47
SECTION 4.10. Limitation on Transactions with Affiliates.....................47
SECTION 4.11. Limitations on Liens...........................................48
SECTION 4.12. Taxes..........................................................49
SECTION 4.13. Limitations on Restrictions on Distributions from Restricted
Subsidiaries................................................49
SECTION 4.14. Maintenance of Office or Agencies..............................50
SECTION 4.15. Change of Control..............................................50
SECTION 4.16. Limitations on Asset Sales.....................................51
SECTION 4.17. Additional Note Guarantees.....................................53
ARTICLE 5
SUCCESSORS
SECTION 5.01. Limitations on Mergers and Certain Other Transactions..........53
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default..............................................54
SECTION 6.02. Acceleration...................................................56
SECTION 6.03. Other Remedies.................................................56
SECTION 6.04. Waiver of Past Defaults........................................56
SECTION 6.05. Control by Majority of Holders.................................57
SECTION 6.06. Limitations on Suits by Holders................................57
SECTION 6.07. Rights of Holders to Receive Payment...........................57
SECTION 6.08. Collection Suit by Trustee.....................................57
SECTION 6.09. Trustee May File Proofs of Claim...............................57
ii
PAGE
----
SECTION 6.10. Priorities.....................................................58
SECTION 6.11. Undertaking for Costs..........................................59
SECTION 6.12. Willful Default................................................59
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee..............................................59
SECTION 7.02. Rights of Trustee..............................................60
SECTION 7.03. Individual Rights of Trustee...................................61
SECTION 7.04. Trustee's Disclaimer...........................................61
SECTION 7.05. Notice to Holders of Defaults and Events of Default............61
SECTION 7.06. Reports by Trustee to Holders..................................61
SECTION 7.07. Compensation and Indemnity.....................................61
SECTION 7.08. Replacement of Trustee.........................................62
SECTION 7.09. Successor Trustee by Merger, Etc...............................63
SECTION 7.10. Eligibility; Disqualification..................................63
SECTION 7.11. Preferential Collection of Claims Against Company..............63
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance....................64
SECTION 8.02. Conditions to Defeasance.......................................65
SECTION 8.03. Application of Trust Money.....................................66
SECTION 8.04. Repayment to Company...........................................66
SECTION 8.05. Indemnity for Government Securities............................67
SECTION 8.06. Reinstatement..................................................67
ARTICLE 9
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted without Consent of
Holders.....................................................67
SECTION 9.02. Amendments and Supplements Requiring Consent of Holders........68
SECTION 9.03. Compliance with TIA............................................68
SECTION 9.04. Revocation and Effect of Consents..............................68
SECTION 9.05. Notation or Exchange of Notes..................................69
SECTION 9.06. Trustee Protected..............................................69
iii
PAGE
----
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate......................................70
SECTION 10.02. Liquidation; Dissolution; Bankruptcy..........................70
SECTION 10.03. No Payment on Notes in Certain Circumstances..................70
SECTION 10.04. Acceleration of Notes.........................................71
SECTION 10.05. When Distributions Must Be Paid Over..........................72
SECTION 10.06. Notice........................................................72
SECTION 10.07. Subrogation...................................................73
SECTION 10.08. Relative Rights...............................................73
SECTION 10.09. The Company, Guarantors and Holders May Not Impair
Subordination...............................................74
SECTION 10.10. Distribution or Notice to Representative......................74
SECTION 10.11. Rights of Trustee and Paying Agent............................75
SECTION 10.12. Authorization to Effect Subordination.........................75
ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee.....................................................75
SECTION 11.02. Trustee to Include Paying Agent...............................76
SECTION 11.03. Subordination of Guarantee....................................76
SECTION 11.04. Senior Subordinated Debt of Guarantor.........................77
SECTION 11.05. Limits of Guarantee...........................................77
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls..................................77
SECTION 12.02. Notices.......................................................77
SECTION 12.03. Communication by Holders with Other Holders...................78
SECTION 12.04. Certificate and Opinion As to Conditions Precedent............78
SECTION 12.05. Statements Required in Certificate or Opinion.................79
SECTION 12.06. Rules by Trustee and Agents...................................79
SECTION 12.07. Legal Holidays................................................79
SECTION 12.08. No Recourse Against Others....................................79
SECTION 12.09. Counterparts..................................................79
SECTION 12.10. Initial Appointments, Compliance Certificates.................79
SECTION 12.11. Governing Law.................................................79
SECTION 12.12. No Adverse Interpretation of Other Agreements.................80
SECTION 12.13. Successors....................................................80
iv
PAGE
----
SECTION 12.14. Severability..................................................80
SECTION 12.15. Third Party Beneficiaries.....................................80
SECTION 12.16. Table of Contents, Headings, Etc..............................80
v
INDENTURE, dated as of February 24, 1998, is by and among E-P
Acquisition, Inc. (as further defined below, the "Company"), the Guarantors and
The Bank of New York, a New York banking corporation, as trustee (the
"TRUSTEE").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the holders of
the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"ACQUIRED INDEBTEDNESS" means (a) with respect to any Person that
becomes a Restricted Subsidiary after the date of this Indenture, Indebtedness
of such Person and its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and (b) with
respect to the Company or any of its Restricted Subsidiaries, any Indebtedness
of a Person (other than the Company or a Restricted Subsidiary) existing at the
time such Person is merged with or into the Company or a Restricted Subsidiary,
or Indebtedness assumed by the Company or any of its Restricted Subsidiaries in
connection with the acquisition of an asset or assets from another Person, which
Indebtedness was not, in any case, incurred by such other Person in connection
with, or in contemplation of, such merger or acquisition.
"ACQUISITION" means the acquisition by E-P Acquisition, Inc. and Parent
of Eagle Picher Industries, Inc., from Eagle-Picher Industries, Inc. Personal
Injury Settlement Trust (the "SETTLEMENT TRUST") as contemplated under the
Merger Agreement, dated as of December 23, 1997 (the "MERGER AGREEMENT"), among
the Settlement Trust, Eagle-Picher Industries, Inc., E-P Acquisition, Inc. and
Parent.
"ACQUISITION MERGER" means the merger upon the closing of the
Acquisition between E- P Acquisition, Inc. and Eagle-Picher Industries, Inc.,
with Eagle-Picher Industries, Inc. as the surviving corporation.
"AFFILIATE" of any Person means any Person (i) which directly or
indirectly controls or is controlled by, or is under direct or indirect common
control with, the referent Person, (ii) which beneficially owns or holds,
directly or indirectly, 10% or more of any class of the Voting Stock, or more
than 20% of all classes of Capital Stock (other than preferred stock) in the
aggregate, of the referent Person, (iii) of which 10% or more of the Voting
Stock, or more than 20% of all classes of Capital Stock (other than preferred
stock) in the aggregate, is beneficially owned or held, directly or indirectly,
by the referent Person or (iv) with respect to an individual, any
immediate family member of such Person. For purposes of this definition, control
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
"AGENT" means any Registrar, Paying Agent, or co-registrar appointed
pursuant to Section 2.03.
"ASSET SALE" means any sale, issuance, conveyance, transfer, lease,
assignment or other disposition to any Person other than the Company or any of
its Restricted Subsidiaries (including, without limitation, by means of a Sale
and Leaseback Transaction or a merger or consolidation) (collectively, for
purposes of this definition, a "transfer"), directly or indirectly, in one
transaction or a series of related transactions, of (a) any Capital Stock of any
Subsidiary or (b) any other properties or assets of the Company or any of its
Subsidiaries other than transfers of cash, Cash Equivalents, accounts
receivable, inventory or other properties or assets in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
include any of the following: (i) any transfer of properties or assets
(including Capital Stock) that is governed by, and made in accordance with, the
provisions of Article 5; (ii) any transfer of properties or assets to an
Unrestricted Subsidiary, if permitted under Section 4.05; (iii) sales of
damaged, worn-out or obsolete equipment or assets that, in the Company's
reasonable judgment, are either no longer used or useful in the business of the
Company or its Subsidiaries, provided that the proceeds thereof are used to
purchase replacement or similar assets for use in the business of the Company
and its Subsidiaries; and (iv) any transfers that, but for this clause (iv),
would be Asset Sales, if after giving effect to such transfers, the aggregate
Fair Market Value of the properties or assets transferred in such transaction or
any such series of related transactions does not exceed $500,000.
"ATTRIBUTABLE INDEBTEDNESS," when used with respect to any Sale and
Leaseback Transaction, means, as at the time of determination, property subject
to such Sale and Leaseback Transaction and the present value (discounted at a
rate equivalent to the Company's then-current weighted average cost of funds for
borrowed money as at the time of determination, compounded on a semi-annual
basis) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in any such Sale and Leaseback Transaction.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended.
"BANKRUPTCY LAW" means the Bankruptcy Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person, or any authorized committee of the Board of Directors
of such Person.
"BOARD RESOLUTION" means a duly adopted resolution of the Board of
Directors of the Company.
2
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York, the State of Ohio or at a
place of payment are authorized by law, regulation or executive order to remain
closed.
"CAPITAL STOCK" of any Person means (i) any and all shares or other
equity interests (including without limitation common stock, preferred stock and
partnership interests) in such Person and (ii) all rights to purchase, warrants
or options (whether or not currently exercisable), participations or other
equivalents of or interests in (however designated) such shares or other
interests in such Person.
"CAPITALIZED LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"CASH EQUIVALENTS" means (i) marketable obligations with a maturity of
360 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof); (ii) U.S. dollar denominated time deposits and certificates of deposit
of any financial institution (a) that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than $500
million or (b) whose short-term commercial paper rating or that of its parent
company is at least A-1 or the equivalent thereof from S&P or P-1 or the
equivalent thereof from Moody's (any such bank, an "APPROVED BANK"), in each
case with a maturity of 360 days or less from the date of acquisition; (iii)
commercial paper issued by any Approved Bank or by the parent company of any
Approved Bank and commercial paper issued by, or guaranteed by, any industrial
or financial company with a short-term commercial paper rating of at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long term unsecured debt
rating of at least A or A2, or the equivalent of each thereof, from S&P or
Moody's, as the case may be, and in each case maturing no more than 360 days
from the date of acquisition; (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clause
(i) above entered into with any commercial bank meeting the specifications of
clause (ii)(a) above; (v) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the types described in
clauses (i) through (iv) above; and (vi) time deposits and certificates of
deposit of any commercial bank of recognized standing having capital and surplus
in excess of the local currency equivalent of $100,000,000 incorporated in a
country where the Company has one or more locally operating Foreign
Subsidiaries, and that is, as of the Issue Date, providing banking services to
the Company or any of its Foreign Subsidiaries.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i)
the consummation of any transaction the result of which is (x) if such
transaction occurs prior to the first sale of Voting Stock of Parent or the
Company pursuant to a registration statement under the
3
Securities Act that results in at least 20% of the then outstanding Voting Stock
of Parent or the Company having been sold to the public, that either (A) Control
Group Members beneficially own, directly or indirectly, less than 51% of the
Voting Stock of the Company or Parent (such percentage determined, for purposes
of this definition, as a percentage of the total voting power of all Voting
Stock of the relevant Person) or (B) any other Person or group (as such term is
used in Section 13(d)(3) of the Exchange Act) is or becomes the beneficial owner
(as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 51%
of the Voting Stock of the Company or Parent (including in any event through
direct or indirect beneficial ownership of Capital Stock of Control Group
Members referred to in clause (ii) of the definition thereof) and (y) if such
transaction occurred thereafter, that any Person or group (as such term is used
in Section 13(d)(3) of the Exchange Act) (other than Control Group Members), is
or becomes the beneficial owner (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of 40% of the Voting Stock of the Company or Parent at
any time at which Control Group Members do not beneficially own, directly or
indirectly, at least 51% of the Voting Stock of the Company and Parent, (ii) the
Company or Parent consolidates with, or merges with or into, another Person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of the Company or Parent and their Subsidiaries,
in either case taken as a whole, to any Person, or any Person consolidates with,
or merges with or into, the Company or Parent, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company or Parent, as
the case may be, is converted into or exchanged for cash, securities or other
property, other than any such transaction where the outstanding Voting Stock of
the Company or Parent, as the case may be, is converted into or exchanged for
Voting Stock (other than Disqualified Capital Stock) of the surviving or
transferee corporation and the beneficial owners of the Voting Stock of the
Company or Parent, as the case may be, immediately prior to such transaction
own, directly or indirectly, not less than a majority of the Voting Stock of the
surviving or transferee corporation immediately after such transaction, or (iii)
during any consecutive two-year period, individuals who at the beginning of such
period constituted the Board of Directors of the Company or Parent (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the stockholders of the Company or Parent, as the
case may be, was approved by either (i) a vote of a majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved or (ii)
a Control Group Member) cease for any reason to constitute a majority of the
Board of Directors of the Company or Parent, as the case may be, then in office.
"CLOSING DATE" means the Issue Date.
"COMPANY" means E-P Acquisition, Inc., a Delaware corporation, and its
successor Eagle-Picher Industries, Inc., an Ohio corporation, as survivor of the
Acquisition Merger, unless and until a subsequent successor replaces it in
accordance with Article 5 and thereafter means such successor.
"CONSOLIDATED AMORTIZATION EXPENSE" for any period means the
amortization expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the
4
computation of Consolidated Net Income), determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED DEPRECIATION EXPENSE" for any period means the
depreciation expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income),
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" for any period means the provision
for taxes based on income and profits of the Company and its Restricted
Subsidiaries to the extent such income or profits were included in computing
Consolidated Net Income for such period.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, with respect to any
determination date, the ratio of (a) EBITDA for the four full fiscal quarters
immediately preceding the determination date (for any determination, the
"Reference Period"), to (b) Consolidated Interest Expense for such Reference
Period. In making such computations, (i) EBITDA and Consolidated Interest
Expense shall be calculated on a pro forma basis assuming that (A) the
Indebtedness to be incurred or the Disqualified Capital Stock to be issued (and
all other Indebtedness incurred or Disqualified Capital Stock issued after the
first day of such Reference Period referred to in Section 4.07, through and
including the date of determination), and (if applicable) the application of the
net proceeds therefrom (and from any other such Indebtedness or Disqualified
Capital Stock), including the refinancing of other Indebtedness, had been
incurred on the first day of such Reference Period and, in the case of Acquired
Indebtedness, on the assumption that the related transaction (whether by means
of purchase, merger or otherwise) also had occurred on such date with the
appropriate adjustments with respect to such acquisition being included in such
pro forma calculation and (B) any acquisition or disposition by the Company or
any Restricted Subsidiary of any properties or assets outside the ordinary
course of business or any repayment of any principal amount of any Indebtedness
of the Company or any Restricted Subsidiary prior to the stated maturity
thereof, in either case since the first day of such Reference Period through and
including the date of determination, had been consummated on such first day of
such Reference Period; (ii) the Consolidated Interest Expense attributable to
interest on any Indebtedness required to be computed on a pro forma basis in
accordance with Section 4.07 and (A) bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period and (B) which was not outstanding during
the period for which the computation is being made but which bears, at the
option of the Company, a fixed or floating rate of interest, shall be computed
by applying, at the option of the Company, either the fixed or floating rate;
(iii) the Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility required to be computed on a pro
forma basis in accordance with Section 4.07 shall be computed based upon the
average daily balance of such Indebtedness during the applicable period,
provided that such average daily balance shall be reduced by the amount of any
repayment of Indebtedness under a revolving credit facility during the
applicable period, which repayment permanently reduced the commitments or
amounts available to be reborrowed under such facility; (iv) notwithstanding the
5
foregoing clauses (ii) and (iii), interest on Indebtedness determined on a
floating rate basis, to the extent such interest is covered by agreements
relating to Hedging Obligations, shall be deemed to have accrued at the rate per
annum resulting after giving effect to the operation of such agreements; and (v)
if after the first day of the applicable Reference Period and before the date of
determination, the Company has permanently retired any Indebtedness out of the
net proceeds of the issuance and sale of shares of Capital Stock (other than
Disqualified Capital Stock) of the Company within 60 days of such issuance and
sale, Consolidated Interest Expense shall be calculated on a pro forma basis as
if such Indebtedness had been retired on the first day of such period.
"CONSOLIDATED INTEREST EXPENSE" for any period means the sum, without
duplication, of the total interest expense of the Company and its consolidated
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP and including, without limitation (i) imputed interest on
Capitalized Lease Obligations and Attributable Indebtedness, (ii) commissions,
discounts and other fees and charges owed with respect to letters of credit
securing financial obligations and bankers' acceptance financing, (iii) the net
costs associated with Hedging Obligations, (iv) amortization of other financing
fees and expenses, (v) the interest portion of any deferred payment obligations,
(vi) amortization of debt discount or premium, if any, (vii) all other non-cash
interest expense, (viii) capitalized interest, (ix) all cash dividend payments
(and non-cash dividend payments in the case of a Restricted Subsidiary) on any
series of preferred stock of the Company or any Restricted Subsidiary (x) all
interest payable with respect to discontinued operations, and (xi) all interest
on any Indebtedness of any other Person guaranteed by the Company or any
Restricted Subsidiary.
"CONSOLIDATED NET INCOME" for any period means the net income (or loss)
of the Company and its consolidated Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded from such net income (to the extent otherwise included
therein), without duplication (i) the net income (or loss) of any Person (other
than a Restricted Subsidiary) in which any Person other than the Company and its
Restricted Subsidiaries has an ownership interest, except to the extent that any
such income has actually been received by the Company and its Restricted
Subsidiaries in the form of cash dividends during such period; (ii) except to
the extent includible in the consolidated net income of the Company pursuant to
the foregoing clause (i), the net income (or loss) of any Person that accrued
prior to the date that (a) such Person becomes a Restricted Subsidiary or is
merged into or consolidated with the Company or any Restricted Subsidiary or (b)
the assets of such Person are acquired by the Company or any Restricted
Subsidiary; (iii) the net income of any Restricted Subsidiary during such period
to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of that income (a) is not permitted
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary during such period or (b) would be subject to any taxes payable on
such dividend or distribution; (iv) any gain (or, only in the case of a
determination of Consolidated Net Income as used in EBITDA, any loss), together
with any related provisions for taxes on any such gain (or, if applicable, the
tax effects
6
of such loss), realized during such period by the Company or any Restricted
Subsidiary upon (a) the acquisition of any securities, or the extinguishment of
any Indebtedness, of the Company or any Restricted Subsidiary or (b) any Asset
Sale by the Company or any of its Restricted Subsidiary; (v) any extraordinary
gain (or, only in the case of a determination of Consolidated Net Income as used
in EBITDA, any extraordinary loss), together with any related provision for
taxes on any such extraordinary gain (or, if applicable, the tax effects of such
extraordinary loss), realized by the Company or any Restricted Subsidiary during
such period; (vi) any non-cash loss during the fiscal year ended November 30,
1998 reflecting the decrease in deferred tax assets resulting from the
Acquisition and transactions consummated in connection therewith; and (vii) in
the case of a successor to the Company by consolidation, merger or transfer of
its assets, any earnings of the successor prior to such merger, consolidation or
transfer of assets; and provided, further, that (A) any gain referred to in
clauses (iv) and (v) above that relates to a Restricted Investment and which is
received in cash by the Company or a Restricted Subsidiary during such period
shall be included in the consolidated net income of the Company, (B) to the
extent deducted in determining consolidated net income for such period and not
otherwise added back pursuant to the foregoing clauses of this definition, the
amount of expenses in respect of Specified Transaction Payments attributable to
such period shall be added back in determining Consolidated Net Income for such
period, and (C) to the extent not otherwise deducted in determining such
consolidated net income for any period, all payments made to Parent pursuant to
any Tax Sharing Agreement or otherwise (including pursuant to Section 4.05) in
respect of taxes for such period shall be deducted from the consolidated net
income of the Company.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the consolidated equity of the common stockholders of such Person and its
consolidated Subsidiaries as of such date, less all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to the date of this Indenture in the
book value of any asset owned by such Person or a Subsidiary of such Person.
"CONTROL GROUP MEMBERS" means (i) the natural person or persons who are
the ultimate beneficial owners of Granaria Holdings N.V. on the Issue Date, as
disclosed under "Security Ownership and Certain Beneficial Owners and Management
of Parent" in the Offering Memorandum and members of their immediate families
and any spouse, parent or descendant of any such person, or a trust the
beneficiaries of which include only any of the foregoing, and any corporation or
other entity all of the Capital Stock of which (other than directors' qualifying
shares) is owned by any of the foregoing or (ii) any corporation or other entity
at least 51% of the Voting Stock of which is owned by any of the Persons
referred to in clause (i).
"CORPORATE TRUST OFFICE" shall be at the address of the Trustee
specified in Section 12.02 or such other address as the Trustee may give notice
to the Company.
"COVERAGE RATIO INCURRENCE CONDITION" would be met at any specified
time only if the Company (or its Successor, as the case may be) would be able to
incur $1.00 of additional
7
Indebtedness at such specified time pursuant to the Consolidated Interest
Coverage Ratio test set forth in Section 4.07.
"CREDIT FACILITY AGENT" means ABN AMRO Bank N.V. in its capacity as
agent for the lenders who are party to the New Credit Agreement, or any
successor or successors thereto of whom the Trustee has received notice.
"CUSTODIAN" means any custodian, receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"DEFAULT" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, The Depository Trust Company, until a successor
shall have been appointed and becomes such Depositary, and, thereafter,
"Depositary" shall mean or include such successor.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness under the New
Credit Agreement (whether incurred pursuant to the definition of Permitted
Indebtedness or pursuant to the provisions of Section 4.07 ) and (ii) any other
Indebtedness constituting Senior Indebtedness that at the date of determination,
has an aggregate principal amount outstanding of at least $25.0 million and that
is specifically designated by the Company, in the instrument creating or
evidencing such Senior Indebtedness or in an Officers' Certificate delivered to
the Trustee, as "Designated Senior Indebtedness."
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock of such Person or
any of its Subsidiaries that, by its terms, by the terms of any agreement
related thereto or by the terms of any security into which it is convertible,
puttable or exchangeable, is, or upon the happening of any event or the passage
of time would be, required to be redeemed or repurchased by such Person or any
to its Subsidiaries, whether or not at the option of the holder thereof, or
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, in whole or in part, on or prior to the final maturity date of the
Notes; provided, however, that any class of Capital Stock of such Person that,
by its terms, authorizes such Person to satisfy in full its obligations with
respect to the payment of dividends or upon maturity, redemption (pursuant to a
sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of
Capital Stock that is not Disqualified Capital Stock, and that is not
convertible, puttable or exchangeable for Disqualified Capital Stock or
Indebtedness, shall not be deemed to be Disqualified Capital Stock so long as
such Person satisfies its obligations with respect thereto solely by the
delivery of Capital Stock that is not Disqualified Capital Stock.
"DOLLARS" and "$" means lawful money of the United States of America.
8
"EBITDA" for any period mean without duplication, the sum of the
amounts for such period of (i) Consolidated Net Income plus (ii) in each case to
the extent deducted in determining Consolidated Net Income for such period (and
without duplication), (A) Consolidated Income Tax Expense, (B) Consolidated
Amortization Expense (but only to the extent not included in Consolidated
Interest Expense), (C) Consolidated Depreciation Expense, (D) Consolidated
Interest Expense and (E) all other non-cash items reducing the Consolidated Net
Income (excluding any such non-cash charge that results in an accrual of a
reserve for cash charges in any future period) for such period, in each case
determined on a consolidated basis in accordance with GAAP and minus (iii) the
aggregate amount of all non-cash items, determined on a consolidated basis, to
the extent such items increased Consolidated Net Income for such Period.
"ELIGIBLE JUNIOR SECURITIES" means (a) the common stock of Parent and
(b) any preferred stock of Parent that (i) has a maturity date or mandatory
redemption date not earlier than March 1, 2009, (ii) has no remedies for missed
dividends other than accrual on a cumulative basis and appointment of not more
than two directors to the Board of Directors of Parent, (iii) is not
convertible, puttable or exchangeable into any other security of Parent other
than common stock and (iv) is not, by its terms, by the terms of any agreement
related thereto or by the terms of any security into which it is convertible,
puttable or exchangeable, and upon the happening of any event or the passage of
time would not be, required to be redeemed or repurchased by such Person or any
of its Subsidiaries, whether or not at the option of the holder thereof, or
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, in whole or in part, on or prior to March 1, 2009.
"EQUITY OFFERING" means a primary offering of Eligible Junior
Securities of Parent pursuant to a registration statement filed with the
Commission in accordance with the Securities Act, or pursuant to a private
placement pursuant to an available exemption from registration and, in the case
of any such private placement, a majority of such placement of which is sold to
Persons that are not then and were not at the Issue Date Affiliates of Granaria
Holdings.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE DEBENTURES" means the 11 3/4% Exchange Debentures due 2008 of
Parent, if issued by Parent in exchange for the Senior Preferred Stock.
"EXCHANGE OFFER" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange New Notes for the
Notes.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement relating to an Exchange Offer on an appropriate form and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
9
"EXISTING INDEBTEDNESS" means all of the Indebtedness of the Company
and its Subsidiaries that is outstanding on the Issue Date.
"FAIR MARKET VALUE" of any asset or items means the fair market value
of such asset or items as determined in good faith by the Board of Directors and
evidenced by a Board Resolution.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Company that is not
incorporated or organized in the United States or in any State thereof.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect on the Issue Date.
"GLOBAL NOTE" means a global note, without coupons, representing all or
a portion of the Notes deposited with, or on behalf of, the Depositary
substantially in the form of Exhibit A attached hereto.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
"GRANARIA HOLDINGS" means Granaria Holdings N.V., a Dutch corporation,
and its successors.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"GUARANTORS" means each of the Subsidiary Guarantors and Parent, and
"GUARANTOR" means any one of the foregoing.
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person pursuant to (i) any interest rate swap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates, (ii) agreements or arrangements
designed to protect such Person against fluctuations in foreign currency
exchange rates in the conduct of its operations, or (iii) any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement
or arrangement designed to protect such Person against fluctuations in commodity
prices, in each case, entered into in the
10
ordinary course of business for bona fide hedging purposes and not for the
purpose of speculation.
"HOLDER" means a Person in whose name a Note is registered on the
Registrar's books.
"IMMATERIAL SUBSIDIARY" means (i) any Subsidiary of the Company which
does not own assets in excess of $50,000, (ii) any Name Holder Subsidiary, and
(iii) Eagle-Picher Inc., a Virgin Islands foreign sales corporation.
"INCUR" means, with respect to any Indebtedness or Obligation, incur,
create, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to such Indebtedness or
Obligation; provided that (i) the Indebtedness of a Person existing at the time
such Person became a Restricted Subsidiary shall be deemed to have been incurred
by such Restricted Subsidiary and (ii) neither the accrual of interest nor the
accretion of accreted value shall be deemed to be an incurrence of Indebtedness.
"INDEBTEDNESS" of any Person at any date means, without duplication:
(i) all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
person or only to a portion thereof); (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services, which payable is not overdue by more than 60 days
according to the original terms of sale unless such payable is being contested
in good faith; (v) the maximum fixed redemption or repurchase price of all
Disqualified Capital Stock of such Person; (vi) all Capitalized Lease
Obligations of such Person; (vii) all Indebtedness of others secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by such
Person; (viii) all Indebtedness of others guaranteed by such Person to the
extent of such guarantee; provided that Indebtedness of the Company or its
Subsidiaries that is guaranteed by the Company or the Company's Subsidiaries
shall only be counted once in the calculation of the amount of Indebtedness of
the Company and its Subsidiaries on a consolidated basis; (ix) all Attributable
Indebtedness; and (x) to the extent not otherwise included in this definition,
Hedging Obligations of such Person. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above, the maximum liability of such Person for any
such contingent obligations at such date and, in the case of clause (vii), the
lesser of (A) the Fair Market Value of any asset subject to a Lien securing the
Indebtedness of others on the date that the Lien attaches and (B) the amount of
the Indebtedness secured. For purposes of the preceding sentence, the "maximum
fixed redemption or repurchase price" of any Disqualified Capital Stock that
does not have a fixed redemption or repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased or redeemed on any date on which
Indebtedness shall be required
11
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock (or any
equity security for which it may be exchanged or converted), such fair market
value shall be determined in good faith by the Board of Directors of such
Person, which determination shall be evidenced by a Board Resolution.
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"INDEPENDENT DIRECTOR" means a director of the Company who has not and
whose Affiliates have not, at any time during the twelve months prior to the
taking of any action hereunder, directly or indirectly, received, or entered
into any understanding or agreement to receive, any compensation, payment or
other benefit, of any type or form, from the Company or any of its Affiliates,
other than customary directors fees for serving on the Board of Directors of the
Company or any Affiliate and reimbursement of out-of-pocket expenses for
attendance at the Company's or Affiliate's board and board committee meetings.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, qualified to perform
the task for which it has been engaged and disinterested and independent with
respect to the Company and its Affiliates.
"INTEREST PAYMENT DATE" shall have the meaning set forth in the Notes.
"INVESTMENTS" of any Person means (i) all investments by such Person in
any other Person in the form of loans, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business) or similar credit extensions
constituting Indebtedness of such Person, and any guarantee of Indebtedness of
any other Person, (ii) all purchases (or other acquisitions for consideration)
by such Person of Indebtedness, Capital Stock or other securities of any other
Person and (iii) all other items that would be classified as investments
(including without limitation purchases of assets outside the ordinary course of
business) on a balance sheet of such Person prepared in accordance with GAAP.
"ISSUE DATE" means the date the Notes are initially issued.
"LIEN" means, with respect to any asset or property, any mortgage, deed
of trust, lien (statutory or other), pledge, lease, easement, restriction,
covenant, charge, security interest or other encumbrance of any kind or nature
in respect of such asset or property, whether or not filed, recorded or
otherwise perfected under applicable law, including without limitation any
conditional sale or other title retention agreement, and any lease in the nature
thereof, any option or other agreement to sell, and any filing of, or agreement
to give, any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction (other than cautionary filings in
respect of operating leases).
12
"MOODY'S" means Moody's Investors Service, Inc., and its successors.
"NAME HOLDER SUBSIDIARY" means any Subsidiary of the Company
incorporated and existing solely for the purpose of reserving the corporate name
of such Subsidiary and which does not conduct any business or hold any assets
other than shares of another Name Holder Subsidiary.
"NET AVAILABLE PROCEEDS" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary), net of (i)
brokerage commissions and other fees and expenses (including fees and expenses
of legal counsel, accountants and investment banks) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), (iii) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the
properties or assets subject to the Asset Sale or having a Lien therein and (iv)
appropriate amounts to be provided by the Company or any Restricted Subsidiary,
as the case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pensions and other postemployment 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; provided, however, that any
amounts remaining after adjustments, revaluations or liquidations of such
reserves shall constitute Net Available Proceeds.
"NEW CREDIT AGREEMENT" means the Credit Agreement dated as of February
24, 1998 by and among ABN AMRO Bank N.V., as agent, PNC Bank, National
Association, as documentation agent, the banks party thereto and the Company,
together with the guarantees delivered by the Guarantors on the Issue Date, any
additional guarantees by the Guarantors and security agreements, as any of the
foregoing may be subsequently amended, restated, refinanced, or replaced from
time to time, and shall include agreements in respect of Hedging Obligations
designed to protect against fluctuations in interest rates and entered into with
respect to loans thereunder.
"NEW NOTES" means any notes of the Company to be offered to Holders in
exchange for Notes pursuant to the Exchange Offer or otherwise pursuant to a
Registration of Notes containing terms identical to the Notes for which they are
exchanged (except as set forth in the form of Note attached hereto).
"NON-RECOURSE PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the
Company or any of its Subsidiaries incurred (a) to finance the purchase of any
assets of the Company or any of its Subsidiaries within 90 days of such
purchase, (b) to the extent the amount of
13
Indebtedness thereunder does not exceed 100% of the purchase cost of such
assets, (c) to the extent the purchase cost of such assets is or should be
included in "additions to property, plant and equipment" in accordance with
GAAP, and (d) to the extent that such Indebtedness is non-recourse to the
Company or any of its Subsidiaries or any of their respective assets other than
the assets so purchased.
"NON-U.S. PERSON" means a person that is not a U.S. person, as defined
in Regulation S.
"NOTES" means the Company's 93/8% Senior Subordinated Notes due 2008
issued under this Indenture, and includes the New Notes.
"OBLIGATION" means any principal, interest (including, in the case of
Senior Indebtedness, interest accruing subsequent to the filing of a petition in
bankruptcy or insolvency at the rate specified in the document relating to such
Indebtedness, whether or not such interest is an allowed claim permitted to be
enforced against the obligor under applicable law), penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OFFER" means a Change of Control Offer or an Net Proceeds Offer, as
the context requires.
"OFFER PERIOD" means a Change of Control Offer Period as an Net
Proceeds Offer Period, as the context requires.
"OFFERING MEMORANDUM" means the Offering Memorandum dated February 20,
1998, in the form used in connection with the original sale of the Notes.
"OFFICER" means any of the following of the Company: the Chairman of
the Board, the Chief Executive Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer or the Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by any two Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel (such
counsel may be an employee of or counsel to the Company or the Trustee) that
complies with the requirements of this Indenture.
"PARENT" means Eagle-Picher Holdings, Inc., a Delaware corporation, and
its successors.
"PARENT PREFERRED STOCK" means collectively the Series A 11 3/4%
Cumulative Redeemable Exchangeable Preferred Stock of Parent and Series B 11
3/4% Cumulative Redeemable Exchangeable Preferred Stock of Parent.
14
"PAYMENT RESTRICTION" with respect to a Subsidiary of any Person, means
any encumbrance, restriction of limitation, whether by operation of the terms of
its charter or by reason of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation, on the ability of (i) such Subsidiary
to (a) pay dividends or make other distributions on its Capital Stock or make
payments on any obligation, liability or Indebtedness owed to such Person or any
other Subsidiary of such Person, (b) make loans or advances to such Person or
any other Subsidiary or such Person, (c) guarantee any Indebtedness of the
Company or any Restricted Subsidiary or (d) transfer any of its properties or
assets to such Person or any other Subsidiary of such Person (other than
customary restrictions on transfers of property subject to a Lien permitted
under this Indenture) or (ii) such Person or any other Subsidiary of such Person
to receive or retain any such dividends, distributions or payments, loans or
advances, guarantee, or transfer of properties or assets.
"PERMITTED INDEBTEDNESS" means any of the following:
(i) Indebtedness of the Company and any Subsidiary Guarantor under
the New Credit Agreement in an aggregate principal amount at any time
outstanding not to exceed (a) under the Senior Secured Term Loan
Facility, $225 million, less the amount thereof that has been repaid
pursuant to the provision of Section 4.16 and (b) under the Revolving
Loan Facility the greater of (x) $175 million and (y) the sum of 80% of
the book value of the eligible accounts receivable and 50% of inventory
of the Company and its Subsidiaries, calculated on a consolidated basis
and in accordance with GAAP;
(ii) Indebtedness under the Notes, the Note Guarantees and this
Indenture;
(iii) Existing Indebtedness;
(iv) Indebtedness under Hedging Obligations, provided that (1)
such Hedging Obligations are related to payment obligations on
Permitted Indebtedness or Indebtedness otherwise permitted by Section
4.07, and (2) the notional principal amount of such Hedging Obligations
at the time incurred does not exceed the principal amount of such
Indebtedness to which such Hedging Obligations relate;
(v) Indebtedness of the Company to a Subsidiary Guarantor and
Indebtedness of any Subsidiary Guarantor to the Company or any other
Subsidiary Guarantor; provided, however, that upon either (1) the
subsequent issuance (other than directors' qualifying shares), sale,
transfer or other disposition of any Capital Stock or any other event
which results in any such Subsidiary Guarantor ceasing to be a
Subsidiary Guarantor or (2) the transfer or other disposition of any
such Indebtedness (except to the Company or a Subsidiary Guarantor),
the provisions of this clause (v) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed, in each case, to be
incurred and shall be treated as an incurrence for purposes Section
4.07 at the time the Subsidiary
15
Guarantor in question ceased to be a Subsidiary Guarantor or the time
such transfer or other disposition occurred;
(vi) Indebtedness in respect of bid, performance or surety bonds
issued for the account of the Company in the ordinary course of
business, including guarantees or obligations of the Company with
respect to letters of credit supporting such bid, performance or surety
obligations (in each case other than for an obligation for money
borrowed);
(vii) Indebtedness in respect of Non-Recourse Purchase Money
Indebtedness incurred by the Company or any Restricted Subsidiary;
(viii) Refinancing Indebtedness; and
(ix) Indebtedness, in addition to Indebtedness incurred pursuant
to the foregoing clauses of this definition, with an aggregate
principal face or stated amount (as applicable) at any time outstanding
for all such Indebtedness incurred pursuant to this clause not in
excess of $35.0 million; provided, however, that (A) Indebtedness under
letters of credit and performance bonds issued for the account of a
Foreign Subsidiary pursuant to this clause to finance trade activities
or otherwise in the ordinary course of business, and not to support
borrowed money or the obtaining of advances or credit, may not exceed
$10.0 million in an aggregate stated or face amount for all such
letters of credit and performance bonds and (B) the aggregate principal
amount at any time outstanding for all other Indebtedness incurred by
all Foreign Subsidiaries pursuant to this clause may not exceed $25.0
million.
"PERMITTED JUNIOR SECURITIES" means any securities of the Company
provided for by a plan of reorganization or readjustment that are subordinated
in right of payment to all Senior Indebtedness that may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Notes are subordinated to Senior Indebtedness.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"PLAN OF LIQUIDATION" with respect to any Person, means a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise): (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
16
"PURCHASE DATE" means the Change of Control Purchase Date or the Net
Proceeds Purchase Date, as the context requires.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RECORD DATE" has the meaning set forth in the Notes.
"REFINANCING INDEBTEDNESS" means Indebtedness of the Company or a
Restricted Subsidiary issued in exchange for, or the proceeds from the issuance
and sale or disbursement of which are used substantially concurrently to repay,
redeem, refund, refinance, discharge or otherwise retire for value, in whole or
in part (collectively, "repay"), or constituting an amendment, modification or
supplement to or a deferral or renewal of (collectively, an "amendment"), any
Indebtedness of the Company or any Restricted Subsidiary (the "Refinanced
Indebtedness") in a principal amount not in excess of the principal amount of
the Refinanced Indebtedness (or, if such Refinancing Indebtedness refinances
Indebtedness under a revolving credit facility or other agreement providing a
commitment for subsequent borrowings, with a maximum commitment not to exceed
the maximum commitment under such revolving credit facility or other agreement);
provided that: (i) the Refinancing Indebtedness is the obligation of the same
Person as that of the Refinanced Indebtedness, (ii) if the Refinanced
Indebtedness was subordinated to or pari passu with the Note Indebtedness, then
such Refinancing Indebtedness, by its terms, is expressly pari passu with (in
the case of Refinanced Indebtedness that was pari passu with) the Note
Indebtedness, or subordinate in right of payment to (in the case of Refinanced
Indebtedness that was subordinated to) the Note Indebtedness at least to the
same extent as the Refinanced Indebtedness; (iii) the portion, if any, of the
Refinancing Indebtedness that is scheduled to mature on or prior to the maturity
date of the Notes has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred that is equal to or greater than the
Weighted Average Life to Maturity of the portion of the Refinanced Indebtedness
being repaid that is scheduled to mature on or prior to the maturity date of the
Notes; and (iv) the Refinancing Indebtedness is secured only to the extent, if
at all, and by the assets (which may include after-acquired assets), that the
Refinanced Indebtedness is secured.
"REGISTRATION" means a registered exchange offer for the Notes by the
Company or other registration of the Notes under the Securities Act pursuant to
and in accordance with the terms of the Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Closing Date, by and among the Company, SBC Warburg
Dillon Read Incorporated and ABN AMRO Incorporated, as such agreement may be
amended, modified or supplemented from time to time.
"REGISTRATION STATEMENT" means the Registration Statement pursuant to
and as defined in the Registration Rights Agreement.
17
"REGULATION S" means Regulation S under the Securities Act.
"RELATED BUSINESS" means any business in which the Company and its
Subsidiaries operate on the Issue Date, or that is closely related to or
complements the business of the Company and its Subsidiaries, as such business
exists on the Issue Date.
"RELATED BUSINESS INVESTMENT" means any Investment directly by the
Company or its Subsidiaries in any Related Business.
"RELATED PARTY AGREEMENT" means any management or advisory agreements
or other arrangements with any Affiliate of the Company or with any other direct
or indirect holder of more than 10% of any class of the Company's or Parent's
capital stock (except, in any such case, Parent, the Company or any Restricted
Subsidiary), but excluding in any event arrangements with ABN AMRO Bank N.V. and
its Affiliates or their respective successors (i) under the New Credit Agreement
or in connection therewith, (ii) in connection with the offering of the Notes or
the Series A Senior Preferred Stock or (iii) pursuant to other banking,
financing or underwriting activity entered into in the ordinary course of
business.
"REPRESENTATIVE" means, with respect to any Senior Indebtedness, the
indenture trustee or other trustee, agent or other representative(s), if any, of
holders of such Senior Indebtedness.
"RESTRICTED DEBT PAYMENT" means any purchase, redemption, defeasance
(including without limitation in substance or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by the Company or a
Restricted Subsidiary, prior to the scheduled maturity or prior to any scheduled
repayment of principal or sinking fund payment, as the case may be, in respect
of Subordinated Indebtedness.
"RESTRICTED INVESTMENT" means any Investment by the Company or any
Restricted Subsidiary (other than investments in Cash Equivalents) in any Person
that is not the Company or a Restricted Subsidiary, including in any
Unrestricted Subsidiary.
"RESTRICTED PAYMENT" means with respect to any Person: (i) the
declaration or payment of any dividend (other than a dividend declared and paid
(x) by a Wholly-Owned Restricted Subsidiary to holders of its Capital Stock, or
(y) by a Subsidiary (other than a Wholly-Owned Restricted Subsidiary) to its
shareholders on a pro rata basis, but only to the extent of the dividends
actually received by the Company or a Restricted Subsidiary) or the making of
any other payment or distribution of cash, securities or other property or
assets in respect of such Person's Capital Stock (except that a dividend payable
solely in Capital Stock (other than Disqualified Capital Stock) of such Person
shall not constitute a Restricted Payment); (ii) any payment on account of the
purchase, redemption, retirement or other acquisition for value of (A) the
Capital Stock of the Company or (B) the Capital Stock of any Restricted
Subsidiary, or any other payment or distribution made in respect thereof, either
directly or indirectly (other than a payment solely in Capital Stock that is not
Disqualified Capital Stock, and excluding any such
18
payment to the extent actually received by the Company or a Restricted
Subsidiary); (iii) any Restricted Investment; (iv) any Restricted Debt Payment;
or (v) payments by the Company or its Restricted Subsidiaries in respect of any
Related Party Agreement.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"REVOLVING LOAN FACILITY" means the revolving loan facility provided
under the New Credit Agreement.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and its successors.
"SALE AND LEASEBACK TRANSACTIONS" means with respect to any Person an
arrangement with any bank, insurance company or other lender or investor or to
which such lender or investor is a party, providing for the leasing by such
Person of any property or asset of such Person which has been or is being sold
or transferred by such Person to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on the
security of such property or asset.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means all Indebtedness and other Obligations
specified below payable directly or indirectly by the Company or any Guarantor,
as the case may be, whether outstanding on the Issue Date or thereafter created,
incurred or assumed by the Company or such Guarantor: (i) the principal of and
interest on and all other Indebtedness under and Obligations related to the New
Credit Agreement (including, without limitation, all loans, letters of credit
and unpaid drawings with respect thereto and other extensions of credit under
the New Credit Agreement, and all expenses, fees, reimbursements, indemnities
and other amounts owing pursuant to the New Credit Agreement), (ii) amounts
payable in respect of any Hedging Obligations, (iii) in addition to the amounts
described in (i) and (ii), all Indebtedness not prohibited by Section 4.07 that
is not expressly pari passu with, or subordinated to, the Notes or the Note
Guarantees, as the case may be, (iv) all Capital Lease Obligations outstanding
on the Issue Date, and (v) all Refinancing Indebtedness permitted under this
Indenture. Notwithstanding anything to the contrary in the foregoing Senior
Indebtedness will not include (a) any Indebtedness which by the express terms of
the agreement or instrument creating, evidencing or governing the same is junior
or subordinate in right of payment to any item of Senior Indebtedness, (b) any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business, (c) Indebtedness incurred (but only
to the
19
extent incurred) in violation of this Indenture as in effect at the time of the
respective incurrence, (d) any Indebtedness of the Company that, when incurred,
was without recourse to the Company, (e) any Indebtedness to any employee of the
Company or any of its respective Subsidiaries or (f) any liability for taxes
owned or owing by the Company.
"SENIOR PREFERRED STOCK" means, collectively, the Series A Senior
Preferred Stock and Series B Senior Preferred Stock.
"SENIOR SECURED TERM LOAN FACILITY" means the term loan facility
providing for the senior secured term loans under the New Credit Agreement.
"SENIOR SUBORDINATED INDEBTEDNESS" of the Company means the Notes and
any other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Notes in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company which is not Senior Indebtedness. "Senior Subordinated
Indebtedness" of any Guarantor has a correlative meaning.
"SERIES A SENIOR PREFERRED STOCK" means the 11 3/4% Series A Cumulative
Redeemable Exchangeable Preferred Stock of Parent.
"SERIES B SENIOR PREFERRED STOCK" means the 11 3/4% Series B Cumulative
Redeemable Exchangeable Preferred Stock of Parent.
"SHELF REGISTRATION STATEMENT" shall mean a Shelf Registration
Statement of the Company pursuant to the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company that would
be a "Significant Subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect
on the Issue Date, except all references to "10 percent" in such definition
shall be changed to "2 percent".
"SPECIAL INTEREST" has the meaning set forth in the Notes.
"SPECIFIED TRANSACTION PAYMENTS" means the following payments made to
or for the benefit of present or future officers and employees of the Company
and its Affiliates, or to Granaria Holdings and its Affiliates, in each case in
connection with the Acquisition and on terms (including without limitation the
amount thereof) substantially as described in the Offering Memorandum, but only
to the extent that the aggregate amount thereof does not exceed $43.2 million
for all periods from and after the Issue Date: (i) payments to finance or
refinance the purchase by such officers and employees (or a trust for their
benefit) of capital stock of Parent or its parent company, the grant or vesting
of any award of such capital stock and the payment by such officers and
employees of income taxes in respect thereof, (ii) "stay put" and other
incentive bonuses, (iii) severance payments and (iv) transaction fees paid to
Granaria Holdings.
20
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or any
Restricted Subsidiary that is subordinated in right of payment to the Notes or
the Note Guarantee of such Restricted Subsidiary, respectively.
"SUBSIDIARY" of any Person means (i) any corporation of which at least
a majority of the aggregate voting power of all classes of the Voting Stock is
owned by such Person directly or through one or more other Subsidiaries of such
Person and (ii) any entity other than a corporation in which such Person,
directly or indirectly, owns at least a majority of the Voting Stock of such
entity entitling the holder thereof to vote or otherwise participate in the
selection of the governing body, partners, managers or others that control the
management and policies of such entity. Unless otherwise specified, "Subsidiary"
means a Subsidiary of the Company.
"SUBSIDIARY GUARANTOR" means each domestic Restricted Subsidiary of the
Company (other than an Immaterial Subsidiary) and each other person who is
required to become (or whom the Company otherwise causes to become) a Subsidiary
Guarantor by the terms of this Indenture.
"TAX SHARING AGREEMENT" means any tax sharing agreement or arrangement
entered or to be entered into by Parent, the Company and its Subsidiaries,
providing for payments by or to Parent, the Company and its Subsidiaries that,
in each case, are not in excess of the tax liabilities that would have been
payable by such Person on a stand-alone basis.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the Closing Date (except as otherwise provided in
Section 1.03 hereof).
"TRUSTEE" means The Bank of New York until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means
such successor.
"TRUST OFFICER" when used with respect to the Trustee means the
chairman or vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Company in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Restricted Subsidiary to be an Unrestricted Subsidiary, and any such
designation shall be deemed to be a Restricted Investment at the time of and
immediately upon such designation by the Company and its Restricted Subsidiaries
in the
21
amount of the Consolidated Net Worth of such designated Subsidiary and its
consolidated Subsidiaries at such time, provided that such designation shall be
permitted only if (A) the Company and its Restricted Subsidiaries would be able
to make the Restricted Investment deemed made pursuant to such designation at
such time, (B) no portion of the Indebtedness or any other obligation
(contingent or otherwise) of such Subsidiary (x) is Guaranteed by the Company or
any Restricted Subsidiary, (y) is recourse to the Company or any Restricted
Subsidiary or (z) subjects any property or asset of the Company or any
Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof and (C) no default or event of default with respect to any
Indebtedness of such Subsidiary would permit any holder of any Indebtedness of
the Company or any Restricted Subsidiary to declare such Indebtedness of the
Company or any restricted Subsidiary due and payable prior to its maturity. The
Board of Directors of the Company may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary, and any such designation shall be deemed to be an
incurrence by the Company and its Subsidiaries of the Indebtedness (if any) of
such Subsidiary so designated for purposes of Section 4.07 as of the date of
such designation, provided that such designation shall be permitted only if
immediately after giving effect to such designation and the incurrence of any
such additional Indebtedness deemed to have been incurred thereby (x) the
Company would meet the Coverage Ratio Incurrence Condition and (y) no Default or
Event of Default shall be continuing. Any such designation by the Board of
Directors described in the two preceding sentences shall be evidenced to the
Trustee by the filing with the Trustee of a certified copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and
setting forth the underlying calculations of such certificate.
"U.S. PERSON" has the meaning ascribed to it in Regulation S.
"VOTING STOCK" with respect to any Person, means securities of any
class of Capital Stock of such Person entitling the holders thereof (whether at
all times or only so long as no senior class of stock or other relevant equity
interest has voting power by reason of any contingency) to vote in the election
of members of the board of directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY", when applied to any Indebtedness
at any date, means the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary of
which 100% of the Capital Stock (except for directors' qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder,
22
but which interest is not in excess of what is required for such purpose) is
owned directly by the Company or through one or more Wholly-Owned Restricted
Subsidiaries.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
"AFFILIATE TRANSACTION"............................................. 4.10
"AGENT MEMBERS"..................................................... 2.07
"ASSET SALE OFFER".................................................. 4.14
"ASSET SALE OFFER AMOUNT"........................................... 4.14
"ASSET SALE OFFER PERIOD"........................................... 4.14
"ASSET SALE PAYMENT"................................................ 4.14
"AGENT MEMBERS"..................................................... 2.07(a)(iii)
"ASSET SALE TRIGGER DATE"........................................... 4.16(c)
"CEDEL BANK"........................................................ 2.01(a)
"CERTIFICATED NOTE"................................................. 2.01(a)
"CHANGE OF CONTROL OFFER"........................................... 4.15(b)(ii)
"CHANGE OF CONTROL OFFER PERIOD".................................... 4.15(c)
"CHANGE OF CONTROL PURCHASE DATE"................................... 4.15(c)
"CHANGE OF CONTROL PURCHASE PRICE".................................. 4.15(a)
"CHANGE OF CONTROL TRIGGER DATE".................................... 4.15(a)
"CINS".............................................................. 2.16
"COMMISSION"........................................................ 4.02
"COVENANT DEFEASANCE"............................................... 8.01(b)(ii)
"CUSIP"............................................................. 2.16
"EVENT OF DEFAULT".................................................. 6.01(a)
"EUROCLEAR"......................................................... 2.01(a)
"EXCESS PROCEEDS"................................................... 4.16(b)(ii)
"GLOBAL NOTE HOLDER"................................................ 2.01(a)
"INSOLVENCY OR LIQUIDATION PROCEEDING".............................. 10.02(a)
"LEGAL DEFEASANCE".................................................. 8.01(b)(i)
"NET PROCEEDS DEFICIENCY"........................................... 4.16(c)(ii)
"NET PROCEEDS OFFER"................................................ 4.16(c)(i)
"NET PROCEEDS OFFER PERIOD"......................................... 4.16(c)(iii)
"NET PROCEEDS PURCHASE DATE"........................................ 4.16(c)(iii)
"NON-PAYMENT DEFAULT"............................................... 10.03(b)
"NOTE GUARANTEE".................................................... 11.01(a)
"NOTE INDEBTEDNESS"................................................. 10.01
"NOTICE OF DEFAULT"................................................. 6.01(a)
"OFFERED PRICE"..................................................... 4.16(c)(ii)
"OFFSHORE CERTIFICATED NOTE"........................................ 2.01(a)
"PAYING AGENT"...................................................... 2.03
23
DEFINED IN
TERM SECTION
"PAYMENT AMOUNT".................................................... 4.16(c)(i)
"PAYMENT BLOCKAGE NOTICE"........................................... 10.03(b)
"PAYMENT BLOCKAGE PERIOD"........................................... 10.03(b)
"PAYMENT DEFAULT"................................................... 10.03(a)
"REGULATION S GLOBAL NOTE".......................................... 2.01(a)
"REGULATION S NOTES"................................................ 2.01(a)
"REGULATION S PERMANENT GLOBAL NOTE"................................ 2.01(a)
"REGULATION S TEMPORARY GLOBAL NOTE"................................ 2.01(a)
"REPLACEMENT FACILITY".............................................. 4.13(b)
"RESTRICTED GLOBAL NOTE"............................................ 2.01(a)
"REGISTRAR"......................................................... 2.03
"RULE 144A NOTES"................................................... 2.01(a)
"SECURITIES ACT LEGEND"............................................. 2.01(a)
"SUCCESSOR"......................................................... 5.01(a)(ii)
"TRUSTEE EXPENSES".................................................. 6.08(a)(iii)
SECTION 1.03. Incorporation by Reference of TIA. Whenever this
Indenture refers to a provision of the TIA, the portion of the provision
required to be incorporated herein in order for this Indenture to be qualified
under the TIA is incorporated by reference in, and made a part of, this
Indenture. Any terms incorporated by reference in this Indenture that are
defined by the TIA, defined by the TIA by reference to another statute or
defined by the SEC in a rule under the TIA have the meanings so assigned to them
therein.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires: (1) a term has the meaning assigned to it in this Indenture; (2) an
accounting term not otherwise defined herein has the meaning assigned to it
under GAAP; (3) "OR" is not exclusive; (4) words in the singular include the
plural, and in the plural include the singular; (5) provisions apply to
successive events and transactions; and (6) any reference to a Section or
Article refers to such Section or Article of this Indenture.
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating. (a) The Notes and the certificate of
authentication of the Trustee or an authenticating agent appointed on its behalf
pursuant to Section 2.02 shall be substantially in the form of Exhibit A hereto,
bearing such legends as are required pursuant to this Section 2.01. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 principal amount and integral multiples
thereof.
24
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
Notes offered and sold to QIBs in reliance on Rule 144A ("RULE 144A
NOTES") shall be issued initially in the form of one or more Global Notes in
definitive, fully registered form, without interest coupons, substantially in
the form of Exhibit A hereto, bearing such legends as are required pursuant to
this Section 2.01 (the "RESTRICTED GLOBAL NOTES"), will be deposited on the
Issue Date with, or on behalf of, the Depositary and registered in the name of
Cede & Co., as nominee of the Depositary (such nominee being referred to herein
as the "GLOBAL NOTE HOLDER"), duly executed by the Company and authenticated by
the Trustee as herein provided. The aggregate principal amount of the Restricted
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary or its nominee,
as hereinafter provided.
Notes sold in offshore transactions in reliance on Regulation S under
the Securities Act ("REGULATION S NOTES") will initially be represented by one
or more temporary Global Notes in definitive, fully registered form without
interest coupons substantially in the form set forth in Exhibit A (each a
"REGULATION S TEMPORARY GLOBAL NOTE") and will be deposited with the Trustee as
custodian for, and registered in the name of Cede & Co., as nominee of the
Depositary for the accounts of Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("EUROCLEAR"), and Cedel
Bank, societe anonyme ("CEDEL BANK"). At any time on or after the 40th day
following the latest of the commencement of the offering of the Notes and the
Issue Date, upon receipt by the Trustee and the Company of a certificate
substantially in the Form of Exhibit B hereto, one or more permanent global
Notes in registered form substantially in the form set forth in Exhibit A (each
a "REGULATION S PERMANENT GLOBAL NOTE" and together with the Regulation S
Temporary Global Notes, the "REGULATION S GLOBAL NOTES") duly executed by the
Company and authenticated by the Trustee as hereinafter provided shall be
deposited with the Trustee, as custodian for the Depositary, in exchange for the
principal amount of the beneficial interest in the Regulation S Temporary Global
Notes to be exchanged, and the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the Regulation S Temporary
Global Notes in an amount equal to the principal amount of the beneficial
interest in the Regulation S Temporary Global Notes so exchanged. Prior to such
40th day, beneficial interests in a Regulation S Temporary Global Note may be
held only through Euroclear or Cedel Bank. The aggregate principal amount of the
Regulation S Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the nominee of
the Depositary for the Regulation S Global Notes, for the accounts of Euroclear
and Cedel Bank, as hereinafter provided.
Any person having a beneficial interest in any Restricted Global Note
may, upon request to the Trustee, exchange such beneficial interest for Notes in
definitive form (each a "U.S. CERTIFICATED NOTE"). Any person having a
beneficial interest in any Regulation S Permanent
25
Global Note may, upon request to the Trustee, exchange such beneficial interest
for Notes in definitive form (each an "OFFSHORE CERTIFICATED NOTE"). The
Offshore Certificated Notes and the U.S. Certificated Notes are sometimes
collectively referred to as the "CERTIFICATED NOTES." Upon any such issuance,
the Trustee is required to register such Notes in the name of, and cause the
same to be delivered to, such persons or persons (or the nominee of any
thereof). Such Notes will be issued in fully registered form and will be subject
to transfer restrictions. In addition, if (i) the Company notifies the Trustee
in writing that the Depositary is no longer willing or able to act as a
depositary and the Company is unable to locate a qualified successor within 90
days or (ii) the Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Certificated Notes, then, upon surrender by the
relevant Global Note Holder of its Global Note, Notes in such form will be
issued to each person that such Global Note Holder and the Depositary identifies
as being the beneficial owner of the related Notes.
Unless and until a Note is exchanged for a New Note in connection with
an effective Registration pursuant to the Registration Rights Agreement, each
Restricted Global Note, each Temporary Regulation S Global Note and each U.S.
Certificated Note shall bear the legend the "SECURITIES ACT LEGEND" set forth
below on the face thereof:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY (1) BY ITS ACQUISITION HEREOF REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT AND (2) IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR
ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (X) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i)(a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (c)
26
OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS
DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (ii) TO THE COMPANY OR (iii) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (Y) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (X)
ABOVE."
(b) Each Global Note, whether or not a New Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY 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 HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 2.06, 2.07 AND 2.08 OF THE
INDENTURE.
(c) Each Temporary Regulation S Global Note shall bear the following
legend on the face thereof:
27
THIS NOTE IS A TEMPORARY GLOBAL SECURITY. PRIOR TO THE
EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO,
BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY
PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON
WHO PURCHASED SUCH INTEREST IN A TRANSACTION THAT DID
NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). BENEFICIAL
INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR DEFINITIVE
SECURITIES. TERMS IN THIS LEGEND ARE USED AS USED IN
REGULATION S UNDER THE SECURITIES ACT.
SECTION 2.02. Execution and Authentication; Authentication Agent. Two
Officers of the Company shall sign each Note for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee, and the Trustee's signature shall be conclusive evidence that
the Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A. The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate the Notes. Unless limited by the terms
of such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or any of its Affiliates. If an
appointment of an authenticating agent is made pursuant to this Section 2.02,
the Notes may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication substantially in
the form set forth in Exhibit A.
The Trustee shall, upon receipt of a written order signed by two
Officers of the Company, authenticate Notes for issuance on the Issue Date in
the aggregate principal amount of up to $220,000,000 (notwithstanding anything
to the contrary contained in this Indenture, the Notes or otherwise, the
aggregate principal amount of outstanding Notes may not exceed that amount at
any time, except as provided in Section 2.10).
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an
office or agency (the "REGISTRAR") where Notes may be presented for registration
of transfer or for exchange (subject to Sections 2.06, 2.07 and 2.08) and an
office or agency (the "PAYING AGENT") where Notes may be presented for payment
and an office or agency where notices to or upon the Company in respect of the
Notes or this Indenture may be served. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may change the Paying
Agent, Registrar or co-registrar without prior notice to any Holder. The Company
shall notify the Trustee and the Trustee shall
28
notify the Holders of the name and address of any Agent not a party to this
Indenture. The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, and such agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent.
The Company initially appoints the Trustee as Registrar (subject to
Section 2.06), Paying Agent and agent for service of notices and demands in
connection with the Notes. The Company or any of its Affiliates may act as
Paying Agent, Registrar or co-registrar. If the Company fails to appoint or
maintain a Registrar and/or Paying Agent, subject to Section 2.06, the Trustee
shall act as such, and shall be entitled to appropriate compensation in
accordance with Section 7.07.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the Holders' benefit or the Trustee all
money the Paying Agent holds for the redemption or purchase of the Notes or for
the payment of principal of, or premium, if any, or interest (including Special
Interest, if any) on the Notes, and will notify the Trustee of any default by
the Company in providing the Paying Agent with sufficient funds to redeem or
purchase Notes or make any payment on the Notes as and to the extent required to
be redeemed, purchased or paid under the terms of this Indenture. While any such
default continues, the Trustee may require the Paying Agent to pay all money it
holds to the Trustee and account for any funds disbursed. The Company at any
time may require the Paying Agent to pay all money it holds to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or any
of its Affiliates) shall have no further liability for the money it delivered to
the Trustee. If the Company or any of its Subsidiaries acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the Holders' benefit all
money it holds as Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders and shall otherwise comply with section 312(a) of
the TIA. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee, at least 7 Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require that sets forth the names and
addresses of, and the aggregate principal amount of Notes held by, each Holder,
and the Company shall otherwise comply with section 312(a) of the TIA.
SECTION 2.06. Transfer and Exchange. (a) The Company appoints the
Trustee as transfer and exchange agent for the purpose of any transfer or
exchange of the Notes.
(b) Neither the Trustee nor the Registrar shall be required to issue,
register the transfer of or exchange any Note (i) to register the transfer of or
exchange any Note selected for redemption, (ii) to register the transfer of or
exchange any Note for a period of 15 days before the mailing of a notice of
redemption and ending on the date of such mailing, (iii) to register the
29
transfer or exchange of a Note between a record date and the next succeeding
interest payment date.
(c) No service charge shall be made for any registration of transfer
or exchange (except as otherwise expressly permitted herein), but the Registrar
may require a Holder to furnish appropriate endorsements and transfer documents
and payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 2.12, 3.06 or 9.05, which the Company shall pay).
(d) Prior to due presentment for registration of transfer of any Note
to the Trustee, the Trustee, any Agent and the Company shall deem and treat the
Person in whose name any Note is registered as the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing on such Note made by anyone other than the Company,
the Registrar, or any co-registrar) for the purpose of receiving payment of
principal of, premium, if any, interest (including Special Interest, if any) on
such Note and for all other purposes, and notice to the contrary shall not
affect the Trustee, any Agent or the Company.
(e) A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar. Prior to the
registration of any transfer by a Holder as provided herein, the Company, the
Trustee, and any agent of the Company shall treat the person in whose name the
Note is registered as the absolute owner thereof for all purposes whether or not
the Note shall be overdue, and neither the Company, the Trustee, nor any such
agent shall be affected by notice to the contrary. Furthermore, any Holder of a
Global Note shall, by acceptance of such Global Note, agree that transfers of
beneficial interests in such Global Note may be effected through a book entry
system maintained by the Holder of such Global Note (or its agent) and that
ownership of a beneficial interest in the Note shall be required to be reflected
in a book entry. When Notes are presented to the Registrar or a co-registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Notes of other authorized denominations (including an
exchange of Notes for New Notes), the Registrar or co-registrar, as relevant,
shall register the transfer or make the exchange as requested if the
requirements for such transactions set forth herein are met; provided that no
exchanges of Notes for New Notes shall occur until a Registration Statement
shall have been declared effective by the SEC and provided further that any
Notes that are exchanged for New Notes shall be cancelled by the Trustee. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Notes at the Registrar's request.
30
All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such transfer or
exchange.
SECTION 2.07. Book-entry Provisions for Global Notes. (a) The
Restricted Global Notes and Regulation S Global Notes initially shall (i) be
registered in the name of the Depositary for such Global Notes or the nominee of
such Depositary, (ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear legends as set forth in Section 2.01.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Restricted Global
Note or Regulation S Global Note may be transferred in accordance with the rules
and procedures of the Depositary and the provisions of Section 2.08. In
addition, U.S. Certificated Notes and Offshore Certificated Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the Restricted Global Notes or the Regulation S Global Notes, respectively,
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Restricted Global Notes or the Regulation S
Global Notes, as the case may be, and a successor depositary is not appointed by
the Company within 90 days of such notice or (ii) an Event of Default of which
the Trustee has actual notice has occurred and is continuing and the Registrar
has received a request from the Depositary to issue such U.S. Certificated Notes
and Offshore Certificated Notes.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the Global Notes to beneficial owners pursuant to paragraph (b) of
this Section, the Registrar shall reflect on its books and records the date and
a decrease in the principal amount of the Global Notes in an amount equal to the
principal amount of the beneficial interest in the Global Notes to be
31
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Certificated Notes of like tenor and amount.
(e) In connection with the transfer of all of the Restricted Global
Notes or Regulation S Global Notes to beneficial owners pursuant to paragraph
(b) of this Section, the Restricted Global Notes or Regulation S Global Notes,
as the case may be, shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the Restricted Global Notes or Regulation S
Global Notes, as the case may be, an equal aggregate principal amount of U.S.
Certificated Notes or Offshore Certificated Notes, as the case may be, of
authorized denominations.
(f) Any U.S. Certificated Notes delivered in exchange for an interest
in any Restricted Global Notes pursuant to paragraph (b) or (d) of this Section
shall, except as otherwise provided by paragraph (e) of Section 2.08, bear the
legend regarding transfer restrictions applicable to the U.S. Certificated Notes
set forth in Section 2.01.
(g) Any Offshore Certificated Note delivered in exchange for an
interest in any Regulation S Global Note pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (e) of Section 2.08,
bear the legend regarding transfer restrictions applicable to the Offshore
Certificated Note set forth in Section 2.01.
(h) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.08. Special Transfer Provisions. Unless and until a Note is
exchanged for a New Note in connection with an effective Registration pursuant
to the Registration Rights Agreement, the following provisions shall apply:
(a) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Certificated Note
or an interest in a Restricted Global Note to a QIB (excluding Non-U.S.
Persons):
(i) If the Note to be transferred consists of (x) U.S. Certificated
Notes, the Registrar shall register the transfer, if such transfer is
being made by a proposed transferor who has checked the box provided
for on the form of Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar, that it is purchasing
the Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a QIB within the meaning of Rule 144A, and is aware that the sale to
it is
32
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representation in order to claim the exemption from registration
provided for by Rule 144A or (y) an interest in the Restricted Global
Note, the transfer of such interest may be effected only through the
book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Note to be
transferred consists of U.S. Certificated Notes, upon receipt by the
Registrar of the documents referred to in clause (i) and instructions
given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the Restricted Global
Notes in an amount equal to the principal amount of the U.S.
Certificated Notes to be transferred and the Trustee shall cancel the
U.S. Certificated Notes so transferred.
(b) TRANSFERS OF INTERESTS IN THE REGULATION S TEMPORARY GLOBAL NOTES.
The following provisions shall apply with respect to registration of any
proposed transfer of interests in any Regulation S Temporary Global Note:
(i) The Registrar shall register the transfer of any Note (x) if the
proposed transferee is a Non-U.S. Person and the proposed transferor
has delivered to the Registrar a certificate substantially in the form
of Exhibit C hereto or (y) if the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on the form of
Note stating, or has otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with provisions of
Rule 144A to a transferee who has signed the certification provided for
on the form of Note stating, or has otherwise advised the Company and
the Registrar in writing, that it is purchasing the Note for its own
account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within
the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that it
is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Registrar of the documents referred to in clause (i)(y) above and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
Restricted Global Notes, in an amount equal to the principal amount of
the Regulation S Temporary Global Notes to be transferred, and the
Trustee shall decrease the amount of the Regulation S Temporary Global
Note.
33
(c) TRANSFERS OF INTERESTS IN THE REGULATION S PERMANENT GLOBAL NOTES
OR OFFSHORE CERTIFICATED NOTES TO U.S. PERSONS. The following provisions shall
apply with respect to any transfer of interests in any Regulation S Permanent
Global Note or Offshore Certificated Notes to U.S. Persons:
(i) prior to the removal of the Securities Act Legend from any
Regulation S Global Note or Offshore Certificated Notes in accordance
with Section 2.01, the Registrar shall refuse to register such
transfer; and
(ii) after such removal, the Registrar shall register the transfer of
any such Note without requiring any additional certification.
(d) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following provisions
shall apply with respect to any transfer of a Note to a Non-U.S. Person:
(i) Prior to 40 days after the date hereof, the Registrar shall
register any proposed transfer of a Note to a Non-U.S. Person upon
receipt of a certificate substantially in the form of Exhibit C hereto
from the proposed transferor.
(ii) On and after 40 days after the date hereof, the Registrar shall
register any proposed transfer to any Non-U.S. Person if the Note to be
transferred is a U.S. Certificated Note or an interest in the
Restricted Global Note, upon receipt of a certificate substantially in
the form of Exhibit C from the proposed transferor.
(iii) (A) If the proposed transferor is an Agent Member holding a
beneficial interest in a Restricted Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (ii) and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the
Restricted Global Notes in an amount equal to the principal amount of
the beneficial interest in the Restricted Global Notes to be
transferred, and (B) if the proposed transferee is an Agent Member,
upon receipt by the Registrar of instructions given in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Regulation S Global Notes in an amount equal to
the principal amount of the U.S. Certificated Notes or the Restricted
Global Notes, as the case may be, to be transferred, and the Trustee
shall cancel the Certificated Notes, if any, so transferred or decrease
the amount of the Restricted Global Notes, as the case may be.
(e) Securities Act Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Securities Act Legend, the Registrar shall deliver
Notes that do not bear the Securities Act Legend. Upon the transfer, exchange or
replacement of Notes bearing the Securities Act Legend, the Registrar shall
deliver only Notes that bear the Securities Act Legend
34
unless there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Securities Act
Legend, each Holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Securities Act Legend and
agrees that it will transfer such Note only as provided in this Indenture. The
Registrar shall not register a transfer of any Note unless such transfer
complies with the restrictions on transfer of such Note set forth in this
Indenture. In connection with any transfer of Notes, each Holder agrees by its
acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Notes. Holders shall surrender mutilated
Notes to the Trustee. If any mutilated Note is surrendered to the Trustee, or if
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee
shall authenticate, a replacement Note if the Trustee's requirements are met,
and each such replacement Note shall be an additional obligation of the Company.
If the Trustee or the Company requires, the Holder must supply an indemnity bond
that is sufficient, in the reasonable judgment of the Trustee and the Company,
to protect the Company, the Trustee, any Agent or any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company and the
Trustee may charge for its reasonable expenses in replacing a Note.
SECTION 2.10. Outstanding Notes. The Notes outstanding at any time are
all the Notes the Trustee has authenticated except for those it has cancelled,
those delivered to it for cancellation, and those described in this Section 2.10
as not outstanding. If a Note is replaced pursuant to Section 2.09, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that a bona
fide purchaser holds the replaced Note. If the entire principal of, premium, if
any, and accrued interest (including Special Interest, if any) on any Note is
considered paid under Section 2.04, it ceases to be outstanding and interest on
it ceases to accrue. Subject to Section 2.11, a Note does not cease to be
outstanding because the Company or any Affiliate of the Company holds such Note.
35
SECTION 2.11. Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or any Affiliate of the Company shall be
considered as though they are not outstanding; provided, however, that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned shall be so disregarded. Notwithstanding the foregoing, Notes that the
Company or any Affiliate of the Company offers to purchase or acquires pursuant
to an exchange offer, tender offer or otherwise shall not be deemed to be owned
by the Company or any Affiliate of the Company until legal title to such Notes
passes to the Company or such Affiliate, as the case may be.
SECTION 2.12. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee on its behalf shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form
of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee on its behalf, upon receipt of a written order signed by
two Officers of the Company, shall authenticate definitive Notes in exchange for
temporary Notes. Until such exchange, temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes.
SECTION 2.13. Cancellation. Holders shall surrender Notes for
cancellation to the Trustee. The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar, any co-registrar, the Paying Agent, the
Company and its Subsidiaries shall forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange, replacement, payment (including
all Notes called for redemption and all Notes accepted for payment pursuant to
an Offer) or cancellation, and the Trustee shall cancel all such Notes and shall
return all cancelled Notes to the Company. The Company may not issue new Notes
to replace any Notes that have been cancelled by the Trustee or that have been
delivered to the Trustee for cancellation. If the Company or any Affiliate of
the Company acquires any Notes (other than by redemption pursuant to Section
3.07 or an Offer pursuant to Section 4.15 or 4.16), such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Notes unless and until such Notes are delivered to the Trustee for cancellation.
SECTION 2.14. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to Holders on a subsequent special record date, in each case at the rate
provided in the Notes and Section 4.01. The Company shall, with the Trustee's
consent, fix or cause to be fixed each such special record date and payment
date. At least 15 days before the special record date, the Company (or, at the
request of the Company, the Trustee in the name of, and at the expense of, the
Company) shall mail a notice that states the special record date, the related
payment date and the amount of interest to be paid.
36
SECTION 2.15. Record Date. The record date for purposes of determining
the identity of holders of Notes entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture shall be determined
as provided for in section 316(c) of the TIA.
SECTION 2.16. CUSIP and CINS Numbers. A "CUSIP" or "CINS" number will
be printed on the Notes and the Trustee shall use CUSIP or CINS numbers, as the
case may be, in notices of redemption, purchase or exchange as a convenience to
Holders, provided that any such notice may state that no representation is made
as to the correctness or accuracy of such numbers printed in the notice or on
the Notes and that reliance may be placed only on the other identification
numbers printed on the Notes. The Company will promptly notify the Trustee of
any change in the CUSIP or CINS number, as the case may be.
ARTICLE 3
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.01. Notices to Trustee. If the Company elects to redeem Notes
pursuant to Section 3.07, it shall furnish to the Trustee, at least 15 but not
more than 30 days before notice of any redemption is to be mailed to Holders (or
such shorter time as may be satisfactory to the Trustee), (x) an Officers'
Certificate stating (i) that the Company has elected to redeem Notes pursuant to
Section 3.07(a) or (b), as the case may be, (ii) the date notice of redemption
is to be mailed to Holders, (iii) the redemption date, (iv) the aggregate
principal amount of Notes to be redeemed, (v) the redemption price for such
Notes and (vi) the amount, if any, of accrued and unpaid interest (including
Special Interest, if any) on such Notes as of the redemption date and (y) an
Opinion of Counsel that the Company is entitled to redeem the Notes pursuant to
Section 3.07. If the Trustee is not the Registrar, the Company shall,
concurrently with delivery of its notice to the Trustee of a redemption, cause
the Registrar to deliver to the Trustee a certificate (upon which the Trustee
may rely) setting forth the name of, and the aggregate principal amount of the
Notes held by, each Holder.
If the Company is required to offer to purchase Notes pursuant to
Section 4.15 or 4.16, it shall furnish to the Trustee, at least 2 Business Days
before notice of the Offer is to be mailed to Holders, an Officers' Certificate
setting forth (i) that the Offer is being made pursuant to Section 4.15 or 4.16,
as the case may be, (ii) the Purchase Date, (iii) the maximum principal amount
of Notes the Company is offering to purchase pursuant to the Offer, (iv) the
purchase price for such Notes and (v) the amount, if any, of accrued and unpaid
interest (including Special Interest, if any) on such Notes as of the Purchase
Date.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
37
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased. If less
than all outstanding Notes are to be redeemed or if less than all Notes tendered
pursuant to an Offer are to be accepted for payment, the Trustee shall select
the outstanding Notes to be redeemed or accepted for payment on a pro rata
basis, by lot or by any other method that the Trustee deems fair and
appropriate. If the Company elects to mail notice of a redemption to Holders,
the Trustee shall at least 15 days prior to the date notice of redemption is to
be mailed (i) select the Notes to be redeemed from Notes outstanding not
previously called for redemption in the manner specified by the Trustee and (ii)
notify the Company of the names of each Holder of Notes selected for redemption,
the principal amount of Notes held by each such Holder and the principal amount
of such Holder's Notes that are to be redeemed. If less than all Notes tendered
pursuant to an Offer are to be accepted for payment, the Trustee shall select on
or prior to the Purchase Date for such Offer the Notes to be accepted for
payment. The Trustee shall select for redemption or purchase Notes or portions
of Notes in principal amounts at maturity of $1,000 or integral multiples
thereof; except that if all of the Notes of a Holder are selected for redemption
or purchase, the aggregate principal amount of the Notes held by such Holder,
even if not an integral multiple of $1,000, may be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or tendered pursuant to an Offer also apply to
portions of Notes called for redemption or tendered pursuant to an Offer. The
Trustee shall notify the Company promptly of the Notes or portions of Notes to
be called for redemption or selected for purchase.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but not more
than 60 days before any redemption date the Company shall mail by first class
mail a notice of redemption to the Trustee. With respect to any redemption of
Notes, the notice shall identify the Notes or portions thereof to be redeemed,
including CUSIP or CINS numbers, and shall state: (1) the redemption date; (2)
the redemption price for the Notes and the amount, if any, of unpaid and accrued
interest on such Notes as of the date of redemption and the premium, if any, and
Special Interest, if any, on the Notes as of the date of redemption; (3) the
section of this Indenture pursuant to which the Notes called for redemption are
being redeemed; (4) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion will be issued; (5) the name and address of the Paying
Agent; (6) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price for, and any accrued and unpaid interest
(including Special Interest, if any) on such Notes as of the date of redemption;
(7) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrete or accrue, as the case
may be, on, and after the redemption date; and (8) that no representation is
made as to the correctness or accuracy of the CUSIP or CINS number (as
applicable) listed in such notice and printed on the Notes.
(b) The Trustee shall (at the Company's expense and in the Company's
name) give the notice of any redemption to Holders; provided, however, that the
Company shall deliver to the Trustee, at least 45 days prior to the date of
redemption and at least 15 days prior to the date that
38
notice of the redemption is to be mailed to Holders, an Officers' Certificate
that (i) requests the Trustee to give notice of the redemption to Holders, (ii)
sets forth the information to be provided to Holders in the notice of
redemption, as set forth in the preceding paragraph, and (iii) sets forth the
aggregate principal amount of Notes to be redeemed and the amount, if any, of
accrued and unpaid interest (including Special Interest, if any) thereon as of
the date of redemption. If the Trustee is not the Registrar, the Company shall,
concurrently with any such request, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the name
of, the address of, and the aggregate principal amount of Notes held by, each
Holder; provided further that any such Officers' Certificate may be delivered to
the Trustee on a date later than permitted under this Section 3.03(b) if such
later date is acceptable to the Trustee.
SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption
is mailed, Notes called for redemption become due and payable on the redemption
date at the price set forth in the Note.
SECTION 3.05. Deposit of Redemption Price. (a) Prior to 10:00 a.m. on
any redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of, and the amount, if any, of accrued
interest and unpaid interest (including Special Interest, if any) on all Notes
to be redeemed in immediately available funds as of the date of redemption.
After any redemption date, the Paying Agent shall promptly return to the Company
any money that the Company deposited with the Paying Agent in excess of the
amounts necessary to pay the redemption price of, and any accrued interest
(including Special Interest, if any) on all Notes to be redeemed.
(b) If the Company complies with the preceding paragraph, interest on
the Notes to be redeemed will cease to accrete or accrue, as the case may be, on
such Notes on the applicable redemption date, whether or not such Notes are
presented for payment. If a Note is redeemed on an interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on the related interest record
date, in all other circumstances, such interest shall be paid to the Holder of
such Note. If any Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply with the
preceding paragraph, interest will be paid on the unpaid principal, premium, if
any, and unpaid interest (including Special Interest, if any) which has accrued
to the redemption date, from the redemption date until such amounts are paid, at
the rate of interest provided in the Notes and Section 4.01.
SECTION 3.06. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall issue and the Trustee shall authenticate for
the Holder at the Company's expense a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. Redemption Provisions. (a) The Notes will not be
redeemable at the Company's option prior to March 1, 2003 except as described
below, with the proceeds of an
39
Equity Offering. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest (including Special
Interest, if any) thereon, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on March 1 of the years
indicated below:
YEAR PERCENTAGE
-------------------------------------- ----------
2003.................................. 104.688%
2004.................................. 103.125%
2005.................................. 101.563%
2006 and thereafter................... 100.000%
(b) In addition to the Company's right to redeem the Notes as set forth
in subsection (a), above, at any time prior to March 1, 2001, the Company may
(but will not have the obligation to) redeem up to 35% of the aggregate
principal amount of the Notes outstanding on the Closing Date at a redemption
price of 109.375% of the principal amount thereof, in each case plus accrued and
unpaid interest (including Special Interest, if any) thereon, if any, to the
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that at least $100 million aggregate principal amount of Notes remain
outstanding immediately after the occurrence of such redemption; and provided,
further that such redemption will occur within 60 days of the date of the
closing of any such Equity Offering.
SECTION 3.08. Mandatory Offers. (a) Within 30 days after any Change of
Control Trigger Date or Asset Sale Trigger Date, the Company shall mail to the
Trustee (who shall mail to each Holder at the Company's expense) a notice
stating: (1) that an Offer is being made pursuant to Section 4.15 or 4.16, as
the case may be, and describing the transaction or transactions that constitute
the change of control or Asset Sale, as the case may be, and the length of time
the Offer shall remain open and the maximum aggregate principal amount of Notes
that the Company is offering to purchase pursuant to such Offer; (2) the
purchase price for the Notes (as set forth in Section 4.15 or 4.16, as the case
may be), the amount (if any) of accrued and unpaid interest on such Notes as of
the Purchase Date, and the Purchase Date; (3) that any Note not accepted for
payment will continue to accrue interest; (4) that, unless the Company defaults
in making such payment, any Note accepted for payment pursuant to the Offer will
cease to accrue interest after the relevant Purchase Date; (5) that Holders may
tender all or any portion of the Notes registered in the name of such Holder and
that any portion of a Note tendered must be tendered in a principal amount of
$1,000 or an integral multiple thereof; (6) that Holders electing to tender any
Note or portion thereof will be required to surrender their Note, with the form
therein entitled "Option of Holder to Elect Purchase" completed, or transfer by
book-entry transfer, to the Company, a Depositary, if appointed by the Company,
or a Paying Agent at the address specified in the notice at least three days
prior to the Purchase Date; (7) that Holders will be entitled to withdraw their
election to tender Notes if the Company, the Depositary or the Paying Agent, as
the case may be, receives, not later than the close of business on the last day
of
40
the relevant Offer Period, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Note
purchased; and (8) that Holders whose Notes are accepted for payment in part
will be issued new Notes equal in principal amount to the unpurchased portion of
Notes surrendered, provided that only Notes in a principal amount of $1,000 or
integral multiples thereof will be accepted for payment in part.
(b) On the Purchase Date for any Offer, the Company will (i) to the
extent lawful, (x) in the case of an Offer resulting from a Change of Control,
accept for payment all Notes or portions thereof properly tendered pursuant to
such Offer and (y) in the case of an Offer resulting from one or more Asset
Sales, accept for payment, on a pro rata basis to the extent necessary, the
Payment Amount of Notes or portions thereof pursuant to the Net Proceeds Offer,
or if less than the Payment Amount has been tendered, all Notes tendered, and
will deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of Sections 3.08 and 4.16, (ii) deposit with the Paying Agent in
immediately available funds the aggregate purchase price of all Notes or
portions thereof accepted for payment and any accrued and unpaid interest
(including Special Interest, if any) on such Notes as of the Purchase Date, and
(iii) deliver, or cause to be delivered, to the Trustee all Notes or portions
thereof so accepted together with an Officers' Certificate setting forth the
name of each Holder that tendered Notes and the principal amount of the Notes,
as the case may be, or portions thereof tendered by each such Holder.
(c) With respect to any Offer, (i) if less than all of the Notes
tendered pursuant to an Offer are to be accepted for payment by the Company for
any reason, the Trustee shall select on or prior to the Purchase Date the Notes
or portions thereof to be accepted for payment pursuant to Section 3.02, and
(ii) if the Company deposits with the Paying Agent on the Purchase Date an
amount sufficient to purchase all Notes accepted for payment, interest shall
cease to accrue on such Notes on the Purchase Date; provided, however, that if
the Company fails to deposit an amount sufficient to purchase all Notes accepted
for payment, the deposited funds shall be used to purchase on a pro rata basis
all Notes accepted for payment and interest shall continue to accrue, as the
case may be, on all Notes not purchased.
(d) Promptly after consummation of an Offer, (i) the Paying Agent shall
mail to each Holder of Notes or portions thereof accepted for payment an amount
equal to the Change of Control Purchase Price or Offered Price, as the case may
be, (ii) with respect to any tendered Note not accepted for payment in whole or
in part, the Trustee shall return such Note to the Holder thereof, and (iii)
with respect to any Note accepted for payment in part, the Company shall issue
and the Trustee shall authenticate and mail to each such Holder a new Note equal
in principal amount to the unpurchased portion of the tendered Note.
(e) The Company will (i) publicly announce the results of the Offer to
Holders on or as soon as practicable after the Purchase Date, and (ii) comply
with Rule 14e-1 under the Exchange
41
Act and any other securities laws and regulations to the extent such laws and
regulations are applicable to any Offer.
(f) If any of this Section 3.08, Section 4.15 or Section 4.16 conflict
with duties imposed upon the Company or the Guarantors by virtue of any
applicable United States securities laws or regulations, the Company or such
Guarantor, as the case may be, shall comply with such securities laws or
regulations and will not be deemed to have breached its obligations under this
Indenture.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes. Subject to the provisions of Article
10, the Company shall pay the principal of, and premium, if any, and interest
(including Special Interest, if any) on the Notes on the dates and in the manner
provided in the Notes. Holders must surrender their Notes to the Paying Agent to
collect principal payments. The Notes will be payable as to principal, premium,
if any, and interest (including Special Interest, if any) at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, at the option of the Company, by wire transfer of immediately
available funds or, in the case of U.S. Certificated Notes or Offshore
Certificated Notes only, by mailing a check to the registered address of the
Holder.
So long as the Global Note Holder is the registered owner of any Notes,
the Global Note Holder will be considered the sole holder of outstanding Notes
represented by such Global Notes under this Indenture. Payments in respect of
the principal of, premium, if any, and interest (including Special Interest, if
any), if any, on any Notes registered in the name of a Global Note Holder on the
applicable record date will be payable by the Trustee to or at the direction of
such Global Note Holder in its capacity as the registered holder under this
Indenture. None of the Company, the Guarantors or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of Notes by the Depositary, or for maintaining,
supervising or reviewing any records of the Depositary relating to such Notes.
Principal, premium or interest (including Special Interest, if any)
shall be considered paid on the date due if, by 3 p.m. Eastern Standard Time on
the Business Day immediately preceding such date, the Company has deposited with
the Paying Agent money in immediately available funds designated for and
sufficient to pay such principal, premium or interest (including Special
Interest, if any); provided, however, that principal, premium or interest
(including Special Interest, if any) shall not be considered paid within the
meaning of this Section 4.01 if money intended to pay such principal, premium or
interest (including Special Interest, if any) is held by the Paying Agent for
the benefit of holders of Senior Indebtedness of the Company pursuant to the
provisions of Article 10. The Paying Agent shall return to the Company, no later
than five
42
days following the date of payment, any money that exceeds the amount then due
and payable on the Notes.
SECTION 4.02. Reports. Whether or not required by the rules and
regulations of the Securities and Exchange Commission (the "COMMISSION"), so
long as any Notes are outstanding, the Company and the Guarantors will file with
the Commission, to the extent such filings are accepted by the Commission, and
will furnish (within 15 days after such filing) to the Trustee and the Holders
of Notes all quarterly and annual reports and other information, documents and
reports that would be required to be filed with the Commission pursuant to
Section 13 of the Exchange Act if the Company and the Guarantors were required
to file under such section. In addition, the Company and the Guarantors will
make such information available to prospective purchasers of the Notes,
securities analysts and broker-dealers who request it in writing. The Company
and the Guarantors have agreed that, for so long as any Notes remain
outstanding, they will furnish to the Holders and beneficial holders of Notes
and to prospective purchasers of Notes designated by the holders and to broker
dealers, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 4.03. Compliance Certificate. The Company shall deliver to the
Trustee, within 90 days after the end of each fiscal year of the Company, an
Officers' Certificate stating that (i) a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year without regard to any
grace period has been made to determine whether the Company has kept, observed,
performed and fulfilled all of its obligations under this Indenture and the
Notes, (ii) such review was supervised by the Officers of the Company signing
such certificate, and (iii) that to the best knowledge of each Officer signing
such certificate, (a) the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default occurred, describing all such
Defaults or Events of Default of which each such Officer may have knowledge and
what action the Company has taken or proposes to take with respect thereto), and
(b) no event has occurred and remains in existence by reason of which payments
on account of the principal of, or premium, if any, or interest (including
Special Interest, if any) on the Notes are prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.02 shall be accompanied by a written
statement of the Company's independent public accountants (which shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Sections 4.01, 4.05, 4.07, 4.08, 4.09, 4.10, 4.13, 4.15, 4.16, 4.17, or Article
5 or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants
43
shall not be liable directly or indirectly to any Person for any failure to
obtain knowledge of any such violation.
The Company will, so long as any of the Notes are outstanding, deliver
to the Trustee, promptly after any Officer of the Company becomes aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.04. Stay, Extension and Usury Laws. Each of the Company and
the Guarantors covenant (to the extent that they may lawfully do so) that they
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that might affect the covenants
or the performance of their obligations under this Indenture and Notes; and each
of the Company and the Guarantors (to the extent they may lawfully do so) hereby
expressly waive all benefit or advantage of any such law, and covenant that they
will not, by resort to any such law, hinder, delay or impede the execution of
any power granted to the Trustee pursuant to this Indenture, but will suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.05. Limitation on Restricted Payments. The Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, make any Restricted Payment (except as permitted below) if at the
time of such Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof;
(ii) the Company would be unable to meet the Coverage Ratio Incurrence
Condition; or
(iii) the amount of such Restricted Payment, when added to the
aggregate amount of all other Restricted Payments (except as expressly
provided in the second following paragraph) made after the Issue Date,
exceeds the sum of (A) 50% of the Company's Consolidated Net Income
(taken as one accounting period) from the beginning of the first fiscal
quarter commencing after the Issue Date to the end of the Company's
most recently ended fiscal quarter for which financial statements are
available at the time of such Restricted Payment (or, if such aggregate
Consolidated Net Income shall be a deficit, minus 100% of such
aggregate deficit) plus (B) the net cash proceeds from the issuance and
sale (other than to a Subsidiary of the Company) after the Issue Date
of (1) the Company's Capital Stock that is not Disqualified Capital
Stock or (2) debt securities of the Company that have been converted
into the Company's Capital Stock that is not Disqualified Capital Stock
and that is not held by a Subsidiary of the Company, plus (C) to the
extent that any Restricted Investment that was made after the Issue
Date is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (x) the
44
cash return of capital with respect to such Restricted Investment (less
the cost of disposition, if any) and (y) the initial amount of such
Restricted Investment plus (D) the amount of Restricted Investment
outstanding in an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary of the Company in
accordance with the definition of "Unrestricted Subsidiary".
The foregoing provisions will not prohibit (1) the payment of any
dividend by the Company or any Restricted Subsidiary within 60 days after the
date of declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture; (2) the redemption,
repurchase, retirement or other acquisition of any Capital Stock of the Company
in exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of other Capital Stock of the
Company (other than any Disqualified Capital Stock); (3) the defeasance,
redemption, repurchase or other retirement of Subordinated Indebtedness in
exchange for, or out of the proceeds of, the substantially concurrent issue and
sale of Capital Stock of the Company (other than (x) Disqualified Capital Stock,
(y) Capital Stock sold to a Subsidiary of the Company and (z) Capital Stock
purchased with the proceeds of loans from the Company or any of its
Subsidiaries); (4) the making of a Related Business Investment in joint ventures
or Unrestricted Subsidiaries out of the proceeds of the substantially concurrent
issue and sale of Capital Stock of the Company (other than (x) Disqualified
Capital Stock, (y) Capital Stock sold to a Subsidiary of the Company and (z)
Capital Stock purchased with the proceeds of loans from the Company or any of
its Subsidiaries); (5) Specified Transaction Payments; (6) payments of up to
$1.75 million to Granaria Holdings or any of its Affiliates in the aggregate in
any fiscal year pursuant to any Related Party Agreement entered into between
Granaria Holdings or any of its Affiliates and the Company or its Subsidiaries
to provide management and similar services to any such Persons or to Parent; (7)
the payments of dividends or distributions to Parent solely in amounts and at
the times necessary to permit Parent to purchase, redeem, acquire, cancel or
otherwise retire for value Capital Stock of Parent, or permit payments of
dividends or distributions by Parent to its shareholders solely in amounts and
at the times necessary to permit such shareholders to (or permit subsequent
distributions to permit their respective shareholders to) purchase, redeem,
acquire, cancel or otherwise retire for value Capital Stock of such
shareholders, in each case held by officers, directors or employees or former
officers, directors or employees (or their transferees, estates or beneficiaries
under their estates), or a trust established for the benefit of any of the
foregoing of Parent, the Company or its Subsidiaries, upon death, disability,
retirement, severance or termination of employment or service or pursuant to any
agreement under which such Capital Stock or related rights were issued; provided
that the amount of such payments under this clause (7) after the Issue Date does
not exceed in the aggregate $5.0 million; (8) the payment of dividends or
distributions of amounts to Parent in amounts and at such times as are
sufficient to pay the scheduled interest or dividends owed by Parent on the
Parent Preferred Stock or Exchange Debentures so long as (x) Parent is the
direct Parent of the Company owning 100% of the Capital Stock of the Company and
(y) such Parent Preferred Stock or Exchange Debentures contains no scheduled
requirement for the payment of cash interest or dividends, as applicable, until
at least five years from the date of their original issuance, provided that at
the time of such
45
Restricted Payment and after giving effect thereto, either (A) Company would be
able to meet the Coverage Ratio Incurrence Condition or (B) the amount of such
Restricted Payment, when added to the aggregate amount of all other Restricted
Payments made after the Issue Date, does not exceed the sum referred to in
clause (iii) of the next preceding paragraph; (9) Restricted Investments the
amount of which, together with the amount of all other Restricted Investments
made pursuant to this clause (9) after the Issue Date, does not exceed $10.0
million, provided that, in the case of clauses (8) and (9), no Default or Event
of Default shall have occurred and be continuing or occur as a consequence of
the actions or payments set forth therein; or (10) during any period in which
Parent files consolidated income tax returns that include the Company, payments
to Parent in amounts not in excess of the amount that the Company would have
paid if it had filed consolidated tax returns on a separate-company basis, in
each case solely in amounts and at the times necessary to permit Parent to pay
its consolidated income taxes.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payments referred to in clauses (2) through (5) or
(10) thereof, and, to the extent deducted in determining Consolidated Net Income
in any period, the Restricted Payments referred to in clauses (6) and (7)
thereof) shall be included once in calculating whether the conditions of clause
(iii) of the second preceding paragraph have been met with respect to any
subsequent Restricted Payments. For purposes of determining compliance with this
Section 4.05, in the event that a transaction meets the criteria of more than
one of the types of Restricted Payments described in the clauses of the
immediately preceding paragraph or of the clauses of the definition of
"Restricted Payment," the Company, in its sole discretion, shall classify such
transaction and only be required to include the amount and type of such
transaction in one of such clauses. If an issuance of Capital Stock of the
Company is applied to make a Restricted Payment pursuant to clause (2), (3) or
(4) above, then, in calculating whether the conditions of clause (iii) of the
second preceding paragraph have been met with respect to any subsequent
Restricted Payments, the proceeds of any such issuance shall be included under
such clause (iii) only to the extent such proceeds are not applied as so
described in this sentence.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by Section 4.05 were computed, which calculations shall be
based upon the Company's latest available financial statements.
SECTION 4.06. Corporate Existence. Subject to Section 4.16 and Article
5, the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each of its Subsidiaries in accordance with
the respective organizational documents of each of its Subsidiaries and the
rights (charter and statutory), licenses and franchises of the Company and each
of its Subsidiaries; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any Subsidiary, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer
46
desirable in the conduct of the business of the Company and its Subsidiaries
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
SECTION 4.07. Limitations on Additional Indebtedness. The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, to incur any Indebtedness (including without limitation Acquired
Indebtedness); provided that (i) the Company and its Restricted Subsidiaries may
incur Permitted Indebtedness and (ii) the Company may incur additional
Indebtedness if, after giving effect thereto, the Company's Consolidated
Interest Coverage Ratio on the date thereof would be at least 2.0 to 1,
determined on a pro forma basis as if the incurrence of such additional
Indebtedness, and the application of the net proceeds therefrom, had occurred at
the beginning of the four-quarter period used to calculate the Company's
Consolidated Interest Coverage Ratio.
SECTION 4.08. Limitation on the Issuance of Capital Stock of Restricted
Subsidiaries. The Company will not permit any Restricted Subsidiary, directly or
indirectly, to issue or sell any shares of its Capital Stock (including options,
warrants or other rights to purchase shares of such Capital Stock) except (i) to
the Company or a Wholly-Owned Restricted Subsidiary, (ii) if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary or (iii) to the extent such shares
represent directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Wholly-Owned Restricted
Subsidiary. The proceeds of any sale of Capital Stock permitted hereunder and
referred to in clauses (ii) and (iii) above will be treated as Net Available
Proceeds and must be applied in a manner consistent with the provisions of
Section 4.16.
SECTION 4.09. Limitations on Layering Debt. The Company will not, and
will not permit any Subsidiary Guarantor to, incur any Indebtedness that is
subordinate or junior in right of payment to any Senior Indebtedness of the
Company or such Subsidiary Guarantor unless such Indebtedness by its terms is
pari passu with, or subordinated to, the Notes or the Note Guarantee of such
Subsidiary Guarantor, as the case may be.
SECTION 4.10. Limitation on Transactions with Affiliates. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, in one transaction or a series of related transactions, sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "AFFILIATE TRANSACTION"), unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee (a) with respect
to any Affiliate Transaction (or series of related transactions) involving
aggregate payments in excess of $1.0 million, an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and a
Secretary's Certificate which sets forth and authenticates a resolution that has
been adopted by a vote of a majority of the Independent Directors approving such
Affiliate
47
Transaction or, if at the time fewer than three Independent Directors are then
in office, a Secretary's Certificate which sets forth and authenticates a
resolution that has been adopted unanimously by the Company's Board of Directors
and (b) with respect to any Affiliate Transaction (or series of related
transactions) involving aggregate payments of $5.0 million or more, the
certificates described in the preceding clause (a) and an opinion as to the
fairness to the Company or such Subsidiary from a financial point of view issued
by an Independent Financial Advisor; provided, however, that the following shall
not be deemed to be Affiliate Transactions: (i) transactions exclusively between
or among (1) the Company and one or more Restricted Subsidiaries or (2)
Restricted Subsidiaries, provided, in each case, that no Affiliate of the
Company (other than another Restricted Subsidiary) owns Capital Stock of any
such Restricted Subsidiary; (ii) transactions between the Company or any
Restricted Subsidiary and any qualified employee stock ownership plan
established for the benefit of the Company's employees, or the establishment or
maintenance of any such plan; (iii) reasonable director, officer and employee
compensation and other benefit, and indemnification arrangements approved by a
majority of the Independent Directors on the Board of Directors; (iv)
transactions permitted under Section 4.05; (v) the pledge of Capital Stock of
Unrestricted Subsidiaries to support the Indebtedness thereof; (vi) the entering
into of any Tax Sharing Agreement, and any payment pursuant thereto; (vii) the
payment on behalf of Parent of ministerial administrative and operating fees and
expenses in the ordinary course to Persons other than to Affiliates of Parent or
the Company, provided that the aggregate amount thereof in any fiscal year of
the Company does not exceed $750,000; (viii) arrangements with ABN AMRO Bank
N.V. or any of its Affiliates or their respective successors (x) under the New
Credit Agreement or the Notes or in connection therewith, (y) in connection with
the offering of the Notes or the Series A Senior Preferred Stock or (z) pursuant
to other banking, financing or underwriting activity entered into in the
ordinary course of business; (ix) transactions between the Company or any
Restricted Subsidiary and any Affiliate of the Company or such Restricted
Subsidiary that is a joint venture, provided that no direct or indirect holder
of an equity interest in such joint venture (other than the Company or a
Restricted Subsidiary) is an Affiliate of the Company or such Restricted
Subsidiary; and (x) Specified Transaction Payments.
SECTION 4.11. Limitations on Liens. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, incur or permit
to exist any Lien of any nature whatsoever on any property of the Company or any
Restricted Subsidiary (including Capital Stock of a Restricted Subsidiary),
whether owned at the Issue Date or thereafter acquired, which secures
Indebtedness that is not Senior Indebtedness unless contemporaneously therewith
effective provision is made to secure the Notes equally and ratably with (or if
such Lien secures Indebtedness that is subordinated to the Notes, prior to) such
Indebtedness for so long as such Indebtedness is secured by a Lien.
The foregoing restrictions shall not apply to (i) Liens existing on the
Issue Date securing Indebtedness outstanding on the Issue Date; (ii) Liens in
favor of the Company or a Subsidiary Guarantor; (iii) Liens to secure
Indebtedness that is non-recourse to the Company or any of its Subsidiaries or
any of their respective assets other than the assets acquired or improved with
such
48
Indebtedness; (iv) Liens securing Acquired Indebtedness permitted to be incurred
under this Indenture, provided that the Liens do not extend to property or
assets not subject to such Lien at the time of acquisition (other than
improvements thereon); (v) Liens on property of a Person existing at the time
such Person is acquired or merged with or into or consolidated with the Company
or any such Restricted Subsidiary (and not created in anticipation or
contemplation thereof); (vi) Liens to secure Refinancing Indebtedness of
Indebtedness secured by Liens referred to in the foregoing clauses (iv) and (v),
provided that in each case such Liens do not extend to any additional property
or assets (other than improvements thereon).
SECTION 4.12. Taxes. The Company shall, and shall cause each of its
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies the failure of which to pay could reasonably be expected to
result in a material adverse effect on the condition (financial or otherwise),
business or results of operations of the Company and its Subsidiaries taken as a
whole, except for those taxes contested in good faith by appropriate
proceedings.
SECTION 4.13. Limitations on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any of its
Restricted Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual Payment Restriction with respect to any of its
Restricted Subsidiaries, except for (a) any such Payment Restriction in effect
on the Issue Date under the New Credit Agreement or the Parent Preferred Stock
or any similar Payment Restriction under any similar credit facility, or any
amendment, restatement, renewal, replacement or refinancing of any of the
foregoing, provided that such similar Payment Restrictions are not, taken as a
whole, materially more restrictive than the Payment Restrictions in effect on
the Issue Date under the New Credit Agreement or the Parent Preferred Stock, (b)
any such Payment Restriction in effect on the Issue Date consisting of customary
net worth or leverage tests in effect on the Issue Date under any credit
facility of any Foreign Subsidiary, or any amendment, restatement, renewal,
replacement or refinancing of any of the foregoing (including for purposes of
this clause (b), any increase in the principal amount available thereunder) (a
"REPLACEMENT FACILITY"), provided that such Payment Restrictions in any such
Replacement Facility are not, taken as a whole, materially more restrictive than
the Payment Restrictions in effect on the Issue Date under the facility amended,
restated, renewed, replaced or refinanced, (c) any such Payment Restriction
under any agreement evidencing any Acquired Indebtedness that was permitted to
be incurred pursuant to this Indenture in effect at the time of such incurrence
and not created in contemplation of such event, provided that such Payment
Restriction is not extended to apply to any of the assets of the entities not
previously subject thereto, (d) any such Payment Restriction arising in
connection with Refinancing Indebtedness; provided that any such Payment
Restrictions that arise under such Refinancing Indebtedness are not, taken as a
whole, materially more restrictive than those under the agreement creating or
evidencing the Indebtedness being refunded or refinanced and (e) any such
restriction by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business.
49
SECTION 4.14. Maintenance of Office or Agencies. The Company will
maintain an office or an agency (which may be an office of any Agent) where
Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of any change in the location of such
office or agency. If at any time the Company shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office, subject to Section 2.06.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.15. Change of Control. (a) Upon the occurrence of a Change of
Control (the "CHANGE OF CONTROL TRIGGER DATE"), each Holder of Notes may require
the Company to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes pursuant to the offer described below
at an offer price in cash equal to 101% of the aggregate principal amount of the
Notes thereof plus accrued and unpaid interest (including Special Interest, if
any), if any, to the date of repurchase (the "CHANGE OF CONTROL PURCHASE
PRICE").
(b) Within 30 days following any Change of Control, the Company will
mail to the Trustee (who shall mail to each Holder at the Company's expense) a
notice (i) describing the transaction or transactions that constitute the Change
of Control, (ii) offering to repurchase, pursuant to the procedures required by
Section 3.08 of this Indenture and described in such notice (a "CHANGE OF
CONTROL OFFER"), on a date specified in such notice (which shall be a business
day not earlier than 30 days or later than 60 days from the date such notice is
mailed) and for the Change of Control Purchase Price, all Notes properly
tendered by such holder pursuant to such offer to purchase for the Change of
Control Purchase Price and (iii) describing the procedures that holders must
follow to accept the Change of Control Offer.
(c) The Change of Control Offer will remain open for a period of at
least 20 Business Days following its commencement (the "CHANGE OF CONTROL OFFER
PERIOD"). No later than five Business Days after the termination of the Change
of Control Offer Period (the "CHANGE OF CONTROL PURCHASE DATE"), the Company
will purchase all Notes tendered in response to the Change of Control Offer.
Payment for any Notes so purchased will be made in the same manner as interest
payments are made.
50
(d) Prior to complying with the provisions of this Section 4.15, but in
any event within 30 days following a Change of Control, the Company will either
repay all outstanding Senior Indebtedness or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Indebtedness to permit
the repurchase of Notes required by this covenant. The Company's obligation to
make a Change of Control Offer will be satisfied if a third party makes the
Change of Control Offer in the manner and at the times and otherwise in
compliance with the requirements applicable to a Change of Control Offer made by
the Company and purchases all Notes properly tendered and not withdrawn under
such Change of Control Offer.
(e) The Company will comply with the applicable tender offer rules,
including the requirements of Rule 14e-1 under the Exchange Act and any other
applicable laws and regulations in connection with the purchase of Notes
pursuant to a Change of Control Offer.
SECTION 4.16. Limitations on Asset Sales. (a) The Company will not, and
will not permit any of its Restricted Subsidiaries to, consummate any Asset Sale
unless (i) the Company or such Restricted Subsidiary receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value of the
assets included in such Asset Sale (evidenced by the delivery by the Company to
the Trustee of an Officers' Certificate certifying that such Asset Sale complies
with this clause (i)), (ii) immediately before and immediately giving effect to
such Asset Sale, no Default or Event of Default shall have occurred and be
continuing, and (iii) at least 80% of the consideration received by the Company
or such Restricted Subsidiary therefor is in the form of cash paid at the
closing thereof. The amount (without duplication) of any (x) Indebtedness (other
than Subordinated Indebtedness) of the Company or such Restricted Subsidiary
that is expressly assumed by the transferee in such Asset Sale and with respect
to which the Company or such Restricted Subsidiary, as the case may be, is
unconditionally released by the holder of such Indebtedness, and (y) any Cash
Equivalents, or other notes, securities or items of property received from such
transferee that are promptly (but in any event within 15 days) converted by the
Company or such Restricted Subsidiary to cash (to the extent of the cash
actually so received), shall be deemed to be cash for purposes of clause (ii)
and, in the case of clause (x) above, shall also be deemed to constitute a
repayment of, and a permanent reduction in, the amount of such Indebtedness for
purposes of the following paragraph (b). If at any time any non-cash
consideration received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is converted into
or sold or otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then the date of such conversion or
disposition shall be deemed to constitute the date of an Asset Sale hereunder
and the Net Available Proceeds thereof shall be applied in accordance with this
Section 4.16. A transfer of assets by the Company to a Restricted Subsidiary or
by a Restricted Subsidiary to the Company or to a Restricted Subsidiary will not
be deemed to be an Asset Sale and a transfer of assets that constitutes a
Restricted Investment and that is permitted under Section 4.05 will not be
deemed to be an Asset Sale.
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company or any Restricted Subsidiary shall, no later than 360 days
after such Asset Sale (i)
51
apply all or any of the Net Available Proceeds therefrom to repay amounts
outstanding under the New Credit Agreement or any other Senior Indebtedness;
provided, in each case, that the related loan commitment (if any) of any
Indebtedness constituting revolving credit debt is thereby permanently reduced
by the amount of such Indebtedness so repaid and/or (ii) invest all or any part
of the Net Available Proceeds thereof in the purchase of fixed assets to be used
by the Company and its Restricted Subsidiaries in a Related Business (together
with any short-term assets incidental thereto), or the making of a Related
Business Investment. The amount of such Net Available Proceeds not applied or
invested as provided in this paragraph will constitute "EXCESS PROCEEDS."
(c) When the aggregate amount of Excess Proceeds equals or exceed $5.0
million (such date, the "ASSET SALE TRIGGER DATE"), the Company will be required
to make an offer to purchase, from all Holders of the Notes, an aggregate
principal amount of Notes equal to the amount of such Excess Proceeds as
follows:
(i) The Company will make an offer to purchase (a "NET PROCEEDS
OFFER") from all holders of the Notes, in accordance with the
procedures set forth in Section 3.08, the maximum principal amount
(expressed as a multiple of $1,000) of Notes that may be purchased out
of the amount (the "PAYMENT AMOUNT") of such Excess Proceeds.
(ii) The offer price for the Notes will be payable in cash in an
amount equal to 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest and
Special Interest, if any, to the date such Net Proceeds Offer is
consummated (the "OFFERED PRICE"), in accordance with the procedures
set forth in this Indenture. To the extent that the aggregate Offered
Price of Notes tendered pursuant to a Net Proceeds Offer is less than
the Payment Amount relating thereto (such shortfall constituting a "NET
PROCEEDS DEFICIENCY"), the Company may use such Net Proceeds
Deficiency, or a portion thereof, for general corporate purposes,
subject to the limitations in Section 4.05.
(iii) If the aggregate Offered Price of Notes validly tendered and not
withdrawn by holders thereof exceeds the Payment Amount, Notes to be
purchased will be selected on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, will be
purchased). The Net Proceeds Offer shall remain open for a period of at
least 20 Business Days following its commencement (the "NET PROCEEDS
OFFER PERIOD"). No later than five Business Days after the termination
of the Offer Period (the "NET PROCEEDS PURCHASE DATE"), the Company
will purchase the principal amount of Notes required to be purchased
pursuant to this covenant. Payment for any Notes so purchased will be
made in the same manner as interest payments are made.
52
(iv) Upon completion of such Net Proceeds Offer in accordance with the
foregoing provisions, the amount of Excess Proceeds with respect to
which such Net Proceeds Offer was made shall be deemed to be zero.
The Company will not permit any Subsidiary to enter into or suffer to
exist any agreement that would place any restriction of any kind (other than
pursuant to law or regulation or the New Credit Agreement) on the ability of the
Company to make a Net Proceeds Offer following any Asset Sale. The Company will
comply with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder, if applicable, in the event that an Asset Sale occurs
and the Company is required to purchase Notes as described above.
SECTION 4.17. Additional Note Guarantees. If the Company or any of its
Subsidiaries shall acquire or create another Subsidiary (other than (x) any
Foreign Subsidiary or (y) a Subsidiary that has been designated as an
Unrestricted Subsidiary or (z) an Immaterial Subsidiary), then within 10 days
after acquiring or creating such Subsidiary, the Company will cause each such
Subsidiary to execute and deliver to the Trustee a counterpart of this Indenture
as a Subsidiary Guarantor.
ARTICLE 5
SUCCESSORS
SECTION 5.01. Limitations on Mergers and Certain Other Transactions.
(a) The Company will not, in a single transaction or a series of related
transactions, (i) consolidate or merge with or into (other than a merger with a
Wholly-Owned Restricted Subsidiary solely for the purpose of changing the
Company's jurisdiction of incorporation to another State of the United States),
or sell, lease, transfer, convey or otherwise dispose of or assign all or
substantially all of the assets of the Company or the Company and its
Subsidiaries (taken as a whole), or assign any of its obligations under the
Notes and this Indenture, to any Person or (ii) adopt a Plan of Liquidation
unless, in either case: (w) the Person formed by or surviving such consolidation
or merger (if other than the Company) or to which such sale, lease, conveyance
or other disposition or assignment shall be made (or, in the case of a Plan of
Liquidation, any Person to which assets are transferred) (collectively, the
"SUCCESSOR"), is a corporation organized and existing under the laws of any
State of the United States of America or the District of Columbia, and the
Successor assumes by supplemental indenture in a form satisfactory to the
Trustee all of the obligations of the Company under the Notes and this
Indenture; (x) immediately prior to and immediately after giving effect to such
transaction and the assumption of the obligations as set forth in clause (w)
above and the incurrence of any Indebtedness to be incurred in connection
therewith, no Default or Event of Default shall have occurred and be continuing;
and (y) immediately after and giving effect to such transaction and the
assumption of the obligations set forth in clause (w) above and the incurrence
of any Indebtedness to be incurred in connection therewith, and the use of any
net proceeds therefrom on a pro forma basis,
53
(1) the Consolidated Net Worth of the Company or the Successor, as the case may
be, would be at least equal to the Consolidated Net Worth of the Company
immediately prior to such transaction and (2) the Company or the Successor, as
the case may be, could meet the Coverage Ratio Incurrence Condition; and (z)
each Subsidiary Guarantor, unless it is the other party to the transactions
described above, shall have by amendment to its guarantee confirmed that its
guarantee of the Notes shall apply to the obligations of the Company or the
Successor under the Notes and this Indenture. For purposes of this covenant, any
Indebtedness of the Successor which was not Indebtedness of the Company
immediately prior to the transaction shall be deemed to have been incurred in
connection with such transaction.
(b) No Subsidiary Guarantor may consolidate with or merge with or into
(whether or not such Subsidiary Guarantor is the surviving Person), another
Person or entity whether or not affiliated with such Subsidiary Guarantor
unless:
(i) the Person formed by or surviving any such consolidation or merger
(if other than such Subsidiary Guarantor) assumes all the obligations
of such Subsidiary Guarantor under the Notes and this Indenture
pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee under this Indenture,
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists, and
(iii) immediately after giving effect to such transaction, the
Coverage Ratio Incurrence Condition would be met.
(c) Subject to Section 5.01(b), in the event of a sale or other
disposition of all of the assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the Capital
Stock of any Subsidiary Guarantor, by way of merger, consolidation or otherwise,
then such Subsidiary Guarantor (in the event of a sale or other disposition of
all of the Capital Stock of such Subsidiary Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all of
the assets of such Subsidiary Guarantor) will be released and relieved of any
obligations under its Note Guarantee; provided that, to the extent applicable,
the Net Proceeds of such sale or other disposition are applied in accordance
with Section 4.16.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. (a) Each of the following constitutes
an event of default (an "EVENT OF DEFAULT"):
54
(i) failure by the Company to pay interest on any of the Notes when it
becomes due and payable and the continuance of any such failure for 30
days;
(ii) failure by the Company to pay the principal or premium, if any,
on any of the Notes when it becomes due and payable, whether at stated
maturity, upon redemption, upon acceleration or otherwise;
(iii) failure by the Company to comply with any of its agreements or
covenants described above under Article 5, or in respect of its
obligations to make a Change of Control Offer or a Net Proceeds Offer
described in Sections 4.15 and 4.16, respectively;
(iv) failure by the Company to comply with any other covenant in this
Indenture and continuance of such failure for 60 days after notice of
such failure has been given to the Company by the Trustee or by the
holders of at least 25% of the aggregate principal amount of the Notes
then outstanding;
(v) failure by either the Company or any of its Restricted
Subsidiaries to make any payment when due after the expiration of any
applicable grace period, in respect of any Indebtedness of the Company
or any of such Restricted Subsidiaries, or the acceleration of the
maturity of such Indebtedness by the holders thereof because of a
default, with an aggregate outstanding principal amount for all such
Indebtedness under this clause (v) of $10.0 million or more (but
excluding in any event any such Indebtedness that is paid when so due
after expiration of any applicable grace period, or upon acceleration
of the maturity thereof, pursuant to any letter of credit);
(vi) one or more final, non-appealable judgments or orders that exceed
$10.0 million in the aggregate for the payment of money have been
entered by a court or courts of competent jurisdiction against the
Company or any Subsidiary of the Company and such judgment or judgments
have not been satisfied, stayed, annulled or rescinded within 60 days
of being entered;
(vii) except as permitted by Section 5.01, any Note Guarantee ceases
to be in full force and effect or any Guarantor repudiates its
obligations under any Note Guarantee;
(viii) if under any Bankruptcy Law, (A) the Company, Parent or any
Significant Subsidiary commences a voluntary case, consents to the
entry of an order for relief against it in an involuntary case,
consents to the appointment of a Custodian of it or for all or
substantially all of its property, or makes a general assignment for
the benefit of its creditors, or (B) a court of competent jurisdiction
enters an order or decree, and such order or decree remains unstated
and in effect for 60 days, that is for relief against the Company,
Parent or any Significant Subsidiary in an involuntary case, appoints a
Custodian of the Company, Parent or any Significant Subsidiary or for
all or substantially
55
all of the property of the Company, Parent or any Significant
Subsidiary, or orders the liquidation of the Company, Parent or any
Significant Subsidiary.
(b) Any notice of default delivered to the Company by the Trustee or by
Holders of Notes with a copy to the Trustee must specify the Default, demand
that it be remedied and state that the notice is a "NOTICE OF DEFAULT".
SECTION 6.02. Acceleration. (a) If an Event of Default (other than an
Event of Default under Section 6.01(a)(viii) with respect to the Company) occurs
and is continuing under this Indenture, the Trustee, by written notice to the
Company, or the holders of at least 25% in aggregate principal amount of the
Notes then outstanding by written notice to the Company and the Trustee may
declare all amounts owing under the Notes to be due and payable immediately.
Upon such declaration of acceleration, the aggregate principal of, premium, if
any, and interest on the outstanding Notes shall immediately become due and
payable.
(b) Notwithstanding anything to the contrary in this Indenture, if an
Event of Default arises under Section 6.01(a)(viii) with respect to the Company,
the principal amount of and premium on, if any, and any accrued and unpaid
interest (including Special Interest, if any) on all outstanding Notes shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders.
(c) The Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may rescind any declaration of
acceleration of such Notes and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Defaults and Events of
Default (other than the nonpayment of principal of, or premium, if any, or
interest on, the Notes which shall have become due by such declaration) shall
have been cured or waived.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, or premium, if any, or interest (including Special Interest, if
any) on, the Notes or to enforce the performance of any provision of the Notes
or this Indenture. The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by notice to the
Trustee may on behalf of all Holders waive any existing Default or Event of
Default and its consequences under this Indenture, except a continuing Default
or Event of Default in the payment of the principal of, premium, if any, or
interest (including Special Interest, if any) on, any Note (which may only be
waived with the consent of each Holder affected). Upon any such waiver, such
Default shall cease to exist, and
56
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; provided that no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 6.05. Control by Majority of Holders. Subject to Section
7.01(e), the Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it by this Indenture. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders, or would
involve the Trustee in personal liability. The Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction.
SECTION 6.06. Limitations on Suits by Holders. A Holder may pursue a
remedy with respect to this Indenture or the Notes only if: (1) the Holder gives
to the Trustee written notice of a continuing Event of Default; (2) the Holders
of at least 25% in principal amount of the then outstanding Notes make a written
request to the Trustee to pursue the remedy; (3) such Holder or Holders offer to
the Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense; (4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and (5) during such 60-day
period the Holders of a majority in aggregate principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request. A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder. Holders of the
Notes may not enforce this Indenture or the Notes, except as provided herein.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, but subject to Article 10, the right of any
Holder to receive payment of principal of, and premium, if any, and interest
(including Special Interest, if any) on, a Note, on or after a respective due
date expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective date, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a)(i) or (a)(ii) occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Company (or any Guarantor or other obligor under the Notes)
for (i) principal, premium, if any, interest, if any, and Special Interest, if
any, remaining unpaid on the Notes, (ii) interest on overdue principal and
premium, if any, and, to the extent lawful, interest, and (iii) 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 ("TRUSTEE EXPENSES").
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable to have the claims of the
57
Trustee (including any claim for Trustee Expenses and for amounts due under
Section 7.07) and the Holders allowed in any Insolvency or Liquidation
Proceeding or other judicial proceeding relative to the Company (or any
Subsidiary Guarantor or other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
to Holders any money or other property payable or deliverable on any such claims
and each Holder authorizes any Custodian in any such Insolvency or Liquidation
Proceeding or other judicial proceeding to make such payments to the Trustee,
and if the Trustee shall consent to the making of such payments directly to the
Holders any such Custodian is hereby authorized to make such payments directly
to the Holders, and to pay to the Trustee any amount due to it hereunder for
Trustee Expenses, and any other amounts due the Trustee or any predecessor
Trustee under Section 7.07; provided, however, that the Trustee shall not be
authorized to (i) consent to, accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder or (ii) vote in respect of the claim of any Holder in
any such Insolvency or Liquidation Proceeding or other judicial proceeding. To
the extent that the payment of any such Trustee Expenses, and any other amounts
due the Trustee under Section 7.07 out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, Notes
and other properties which the Holders may be entitled to receive in such
proceeding, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
First: to the Trustee for all Trustee Expenses and for all amounts
due under Section 7.07;
Second: to the holders of Senior Indebtedness to the extent required
by Article 10;
Third: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, interest, Special Interest, if
any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for
principal, premium, if any, interest and Special Interest, if
any, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
58
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.06, or a suit by Holders of
more than 10% in principal amount of the then outstanding Notes.
SECTION 6.12. Willful Default. In the case of an Event of Default
occurring by reason of any willful action (or inaction) taken (or not taken) by
or on behalf of the Company with the intention of avoiding payment of the
premium that the Company would have had to pay if the Company then had elected
to redeem the Notes under the provisions of Article 3 and under the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, upon the acceleration of the Notes. If an Event of
Default occurs prior to March 1, 2003 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Notes prior to March 1, 2003,
then, upon acceleration of the Notes, an additional premium shall also become
and be immediately due and payable, to the extent permitted by law, in an amount
equal to 10.0%.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default occurs (and
has not been cured) the Trustee shall (i) exercise the rights and powers vested
in it by this Indenture, and (ii) use the same degree of care and skill in
exercising such rights and powers as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default: (i) the
Trustee's duties shall be determined solely by the express provisions of this
Indenture and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether they conform to this Indenture's
requirements.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that: (i) this Section 7.01(c) does not
59
limit the effect of Section 7.01(b); (ii) the Trustee shall not be liable for
any error of judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and (iii)
the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction it receives pursuant to
Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee shall be subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers or to perform any duty under
this Indenture at the request of any Holders unless such Holders shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as it may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document it believes to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in any
such document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and 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 under this Indenture in good faith and in reliance on such
advice or opinion.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders, unless such
60
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. The Trustee shall at all times
comply with Section 310(b) of the TIA as in effect from time to time. Each Agent
shall have the same rights as the Trustee under this Section 7.03.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes; it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement or recital in this Indenture or any statement in the Notes or any
other document executed in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05. Notice to Holders of Defaults and Events of Default. If a
Default or Event of Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to the Holders a notice of the Default or Event
of Default within 30 days after the occurrence thereof. Except in the case of a
Default or Event of Default in payment of principal or interest or Special
Interest, if any, on any Note (including any failure to redeem Notes called for
redemption or any failure to purchase Notes that are tendered pursuant to an
Offer and that are required to be purchased by the terms of this Indenture), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers determines in good faith that withholding such notice is in the
Holders' interests.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15 beginning with May 15, 1998, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with section 313(a)
of the TIA (but if no event described in section 313(a) of the TIA has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with section 313(b)(2) of the TIA.
The Trustee shall also transmit by mail all reports as required by section
313(c) of the TIA.
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be filed with
the SEC and each stock exchange on which the Notes are listed. The Company shall
notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation for its services hereunder as the
parties shall agree from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable disbursements,
advances and expenses it incurs or makes in addition to the
61
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, from and against any and
all losses, liabilities or expenses the Trustee Incurs arising out of or in
connection with the acceptance or administration of its duties under this
Indenture (including any expenses Incurred in connection with the performance of
its duties under Section 6.08), except as set forth below. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity;
provided, however, that failure by the Trustee to provide the Company with any
such notice shall not relieve the Company of any of its obligations under this
Section 7.07 except to the extent that the Company has been prejudiced by such
failure. The Company shall defend the claim and the Trustee shall cooperate in
the defense of any such claim. If, in the opinion of the Trustee's counsel, the
Trustee has an interest adverse to the Company or a potential conflict of
interest exists between the Trustee and the Company, the Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The Company's obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture. The Company need not reimburse any
expense or indemnify against any loss or liability the Trustee Incurs through
the Trustee's negligence or bad faith.
To secure payment of the Company's obligations under this Section 7.07,
the Trustee shall have a Lien prior to the Notes on all money or property the
Trustee holds or collects, except that held in trust to pay principal of, and
premium, if any, interest and Special Interest, if any, on, particular Notes.
Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee Incurs expenses or renders services after an Event of
Default specified in Section 6.01(a)(viii) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute administrative expenses under any Bankruptcy
Law without any need to demonstrate substantial contribution under Bankruptcy
Law.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.08.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company in writing. The Holders of a majority in aggregate
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if: (i) the Trustee fails to comply with Section 7.10; (ii) the Trustee
is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law; (iii) a Custodian or public
officer takes charge
62
of the Trustee or its property or (iv) the Trustee becomes incapable of
performing the services of the Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee, provided that within one year after such appointment the Holders of a
majority in aggregate principal amount of the then outstanding Notes may appoint
a successor Trustee to replace any successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
appointment to Holders. The retiring Trustee shall promptly transfer all
property it holds as Trustee to the successor Trustee, subject to its rights
under Section 7.07 and provided that all sums owing to the retiring Trustee
hereunder have been paid. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 shall continue
for the retiring Trustee's benefit with respect to expenses and liabilities
relating to the retiring Trustee's activities prior to being replaced.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, subject to Section 7.10,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times (i) be a corporation organized and doing business under the laws of the
United States of America, of any state thereof, or the District of Columbia
authorized under such laws to exercise corporate trustee power, (ii) be subject
to supervision or examination by federal or state authority, (iii) have a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition, and (iv) satisfy the requirements
of sections 310(a)(1), (2) and (5) and 310(b) of the TIA.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee is subject to section 311(a) of the TIA, excluding any creditor
relationship listed in section 311(b)
63
of the TIA. A Trustee who has resigned or been removed shall be subject to
section 311(a) of the TIA to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance. (a) Subject
to Sections 8.01(c) and 8.06, this Indenture shall cease to be of any further
effect after (i) either the Company has delivered to the Trustee all outstanding
Notes (other than Notes replaced pursuant to Section 2.09) for cancellation or
all outstanding Notes have become due and payable and the Company has
irrevocably deposited with the Trustee or a Paying Agent money and/or Government
Securities in an amount sufficient (without reinvestment thereof) to pay when
due all principal of, premium, if any, and interest and Special Interest, if
any, on, all outstanding Notes (other than Notes replaced pursuant to Section
2.09), and (ii) the Company pays all other sums payable under this Indenture.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the Company at any
time may terminate (i) all its obligations under this Indenture and the Notes
("LEGAL DEFEASANCE"), or (ii) its obligations under Sections 4.02, 4.03, 4.05,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01
("COVENANT DEFEASANCE"). The Company may exercise Legal Defeasance
notwithstanding its prior exercise of Covenant Defeasance.
If the Company exercises Legal Defeasance, payment of the Notes may not
be accelerated because of an Event of Default. If the Company exercises Covenant
Defeasance, payment of the Notes may not be accelerated because of an Event of
Default specified in 6.01 (a)(iii), (iv), (v), (vi), (vii) or (viii).
Upon satisfaction of the conditions set forth in Section 8.02 and upon
the Company's request (and at the Company's expense), the Trustee shall
acknowledge in writing the discharge of those obligations that the Company has
terminated. Upon discharge of the Company's obligations as a result of the
exercise by the Company of its Covenant Defeasance the obligations of the
Guarantors under the Note Guarantees and under this Indenture shall terminate.
(c) Notwithstanding Sections 8.01(a) and (b), the Company's
obligations under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.04,
7.07, 7.08, 8.04, 8.05, and 8.06, and the obligations of the Trustee and the
Paying Agent under Section 8.04 shall survive until the Notes have been paid in
full. Thereafter, the Company's obligations under Sections 7.07 and 8.05 and the
obligations of the Company, Trustee and Paying Agent under Section 8.04 shall
survive.
64
SECTION 8.02. Conditions to Defeasance. The Company may exercise either
Legal Defeasance or Covenant Defeasance only if:
(i) the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, (x) in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest and Special Interest, if any, on the
outstanding Notes on the stated maturity or the date such payments are
due in accordance with the terms of the Notes or on the applicable,
redemption date, as the case may be, and (y) in the opinion of the
Company as stated in an Officers' Certificate, to pay the Trustee
Expenses. In addition, the Company specifies whether the Notes are
being defeased to maturity or to a particular redemption date,
(ii) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee (1) an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (y) since
the date of this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel will confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal
Defeasance had not occurred, (2) an Opinion of Counsel to the effect
that (x) the deposit of the trust funds does not violate the Investment
Company Act of 1940 and (y) after the period ending on the 123rd day
after the date of deposit, the trust funds will not be subject to the
effect of Section 547 of the United States Bankruptcy Code or Section
15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company under either such statute,
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee (1) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
at the same times as would have been the case if such Covenant
Defeasance had not occurred, (2) an Opinion of Counsel to the effect
that (x) the deposit of the trust funds does not violate the Investment
Company Act of 1940 and (y) after the period ending on the 123rd day
after the date of deposit, the trust funds will not be subject to the
effect of Section 547 of the United States Bankruptcy Code or Section
15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company under either such statute,
65
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 123rd day
after the date of deposit,
(v) such Legal 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
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound,
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others and
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
SECTION 8.03. Application of Trust Money. The Trustee or Paying Agent
shall hold in trust money and/or Government Securities deposited with it
pursuant to this Article 8. The Trustee or Paying Agent shall apply the
deposited money and the money from Government Securities in accordance with this
Indenture to the payment of principal of, and premium, if any, interest or
Special Interest, if any, on, the Notes. Money deposited with the Trustee or a
Paying Agent pursuant to this Article 8 shall not be subject to the provisions
of Article 10.
SECTION 8.04. Repayment to Company. After the Notes have been paid in
full, the Trustee and the Paying Agent shall promptly turn over to the Company
any excess money or Notes held by them.
Any money deposited with the Trustee or a Paying Agent pursuant to this
Article 8 for the payment of the principal of, premium, if any, interest or
Special Interest, if any, on, any Note that remains unclaimed for two years
after becoming due and payable shall be paid to the Company on its request; and
the Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such money shall cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (National Edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
66
SECTION 8.05. Indemnity for Government Securities. The Company shall
pay and shall indemnify the Trustee and any Paying Agent against any tax, fee or
other charge imposed on or assessed against cash and/or Government Securities
deposited with it pursuant to this Article 8 or the principal and interest
received on such cash and/or Government Securities.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or Government Securities in accordance with this Article 8 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's Obligations under this Indenture and the Notes
and the Guarantors' Obligations under the Note Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
Government Securities in accordance with this Article 8; provided, however, that
if the Company or any Guarantor has made any payment of principal of, or
premium, if any, interest, or Special Interest, if any, on, any Notes because of
the reinstatement of its Obligations under this Indenture and the Notes or the
Note Guarantees, the Company or such Guarantor, as the case may be, shall be
subrogated to the Holders' rights to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted without Consent of
Holders. (a) Notwithstanding Section 9.02, the Company, the Guarantors and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder to: (i) cure any ambiguity, defect or inconsistency; (ii) provide
for uncertificated Notes in addition to or in place of Certificated Notes; (iii)
provide for the assumption of the obligations to the Holders of the Company or a
Guarantor, as the case may be, in the event of a merger or consolidation; (iv)
make any change that (1) would provide any additional rights or benefits to
Holders or (2) does not adversely affect the legal rights under this Indenture
of any Holder; or (v) comply with the requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
(b) Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors of the Company authorizing the execution of
any amended or supplemental indenture and the documents described in Section
9.06, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture, but the Trustee shall not be obligated to enter
into an amended or supplemental indenture that adversely affects its own rights,
duties or immunities under this Indenture or otherwise.
67
SECTION 9.02. Amendments and Supplements Requiring Consent of Holders.
(a) Except as otherwise provided in Sections 9.01(a), this Indenture and the
Notes may be amended or supplemented with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Notes), and any existing Default or Event of Default or compliance with
any provision of this Indenture or the Notes may be waived (other than any
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes) with the consent of Holders of at
least a majority in aggregate principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for the Notes); provided that:
(i) no such modification or amendment may, without the consent of the
holders of 75% in aggregate principal amount of Notes then outstanding,
amend or modify the obligations of the Company under Section 4.15 (or
the definitions related thereto) that could adversely affect the rights
of any holder of the Notes; and
(ii) without the consent of each holder affected, the Company and the
Trustee may not: (w) extend the maturity of any Note; (x) affect the
terms of any scheduled payment of interest on or principal of the Notes
(including without limitation any redemption provisions); (y) take any
action that would subordinate the Notes or the Note Guarantees to any
other Indebtedness of the Company or any of Guarantors, respectively
(except as provided in Article 10), or otherwise affect the ranking of
the Notes or the Note Guarantees; or (z) reduce the percentage of
holders necessary to consent to an amendment, supplement or waiver to
this Indenture.
(b) It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof. After
an amendment, supplement or waiver under this Section becomes effective, the
Company shall mail to each Holder affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver.
SECTION 9.03. Compliance with TIA. Every amendment or supplement to
this Indenture or the Notes shall be set forth in an amended supplemental
indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. (a) Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder and every subsequent Holder of a
Note or portion of a Note that evidences the same Indebtedness as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to his or her
Note or portion of a Note if the Trustee receives the notice of revocation
before the date on
68
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Notes have consented to the amendment,
supplement or waiver.
(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders of Notes entitled to consent to any
amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders of Notes at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to consent to such amendment or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders of Notes after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Notes required hereunder for such amendment
or waiver to be effective shall have also been given and not revoked within such
90-day period.
(c) After an amendment or waiver becomes effective, it shall bind every
Holder, unless it is of the type described in clause (ii) of Section 9.02(a), in
which case the amendment or waiver shall only bind each Holder that consented to
it and every subsequent holder of a Note that evidences the same debt as the
consenting Holder's Note.
SECTION 9.05. Notation or Exchange of Notes. The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment, supplement
or waiver. Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee Protected. The Trustee shall sign any amendment
or supplemental indenture authorized pursuant to this Article 9 if the amendment
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing such
amendment or supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 7.01, shall be fully protected in relying upon, an
Officers' Certificate and Opinion of Counsel pursuant to Sections 12.04 and
12.05 as conclusive evidence that such amendment or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company and the Guarantors in
accordance with its terms. Neither the Company nor any Guarantor may sign an
amendment or supplemental indenture until the Board of Directors of the Company
approves it.
69
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate. The Company and each Guarantor
agrees, and each Holder by accepting a Note agrees, that the payment by the
Company of principal of, and premium, if any, and interest (including Special
Interest, if any) on the Notes, and by each Guarantor of such amounts under its
Note Guarantee (collectively, the "NOTE INDEBTEDNESS"), are subordinated to the
prior payment in full in cash when due of the principal of, and premium, if any,
and accrued and unpaid interest on and all other amounts owing in respect of,
all existing and future Senior Indebtedness of the Company and of each
Guarantor, as the case may be.
SECTION 10.02. Liquidation; Dissolution; Bankruptcy. (a) Upon any
payment or distribution to creditors of the Company or any Guarantor of the
assets of the Company or the Guarantors of any kind or character in a total or
partial liquidation or dissolution of the Company or the Guarantors or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or any Guarantor, whether voluntary or involuntary
(including any assignment for the benefit of creditors and proceedings for
marshaling of assets and liabilities of the Company or any Guarantor) (a
"INSOLVENCY OR LIQUIDATION PROCEEDING"), the holders of all Senior Indebtedness
of the Company or any Guarantor then outstanding will be entitled to payment in
full in cash (including interest accruing subsequent to the filing of petition
of bankruptcy or insolvency at the rate specified in the document relating to
the applicable Senior Indebtedness, whether or not such interest is an allowed
claim enforceable against the Company or any Guarantor under applicable law)
before the Holders of Notes are entitled to receive any payment (other than
payments made from a trust previously established pursuant to provisions
described Section 8.02) on or with respect to the Note Indebtedness and until
all Senior Indebtedness receives payment in full in cash, any distribution to
which the Holders of Notes would be entitled will be made to holders of Senior
Indebtedness.
(b) Notwithstanding anything to the contrary in Section 10.02, Holders
of Notes may continue to receive payments from the trust established pursuant to
Article 8.
SECTION 10.03. No Payment on Notes in Certain Circumstances. (a) Upon
the occurrence of any default in the payment of any principal of or interest on
or other amounts due on any Designated Senior Indebtedness of the Company or any
Guarantor (a "PAYMENT DEFAULT"), no payment of any kind or character shall be
made by the Company or a Guarantor (or by any other Person on its or their
behalf) with respect to the Note Indebtedness unless and until (i) such Payment
Default shall have been cured or waived in accordance with the instruments
governing such Indebtedness or shall have ceased to exist, (ii) such Designated
Senior Indebtedness has been discharged or paid in full in cash in accordance
with the instruments governing such Indebtedness or (iii) the benefits of this
sentence have been waived by the holders of such Designated Senior Indebtedness
or their representative, including, if applicable, the Agents, immediately after
which the Company must resume making any and all required payments, including
missed payments, in respect of its obligations under the Notes.
70
(b) Upon (i) the occurrence and continuance of an event of default
(other than a Payment Default) relating to Designated Senior Indebtedness, as
such event of default is defined therein or in the instrument or agreement under
which it is outstanding, which event of default, pursuant to the instruments
governing such Designated Senior Indebtedness, entitles the holders (or a
specified portion of the holders) of such Designated Senior Indebtedness or
their designated representative to immediately accelerate without further notice
(except such notice as may be required to effect such acceleration) the maturity
of such Designated Senior Indebtedness (whether or not such acceleration has
actually occurred) (a "NON-PAYMENT DEFAULT") and (ii) the receipt by the Trustee
and the Company or any Guarantor from the trustee or other representative of
holders of such Designated Senior Indebtedness of written notice (a "PAYMENT
BLOCKAGE NOTICE") of such occurrence, no payment is permitted to be made by the
Company or any Guarantor (or by any other Person on its or their behalf) in
respect of the Note Indebtedness for a period (a "PAYMENT BLOCKAGE PERIOD")
commencing on the date of receipt by the Trustee of such notice and ending on
the earliest to occur of the following events (subject to any blockage of
payments that may then be in effect due to a Payment Default on Designated
Senior Indebtedness): (w) such Non-payment Default has been cured or waived or
has ceased to exist; (x) a 179-consecutive-day period commencing on the date
such written notice is received by the Trustee has elapsed; (y) such Payment
Blockage Period has been terminated by written notice to the Trustee from the
Trustee or other representative of holders of such Designated Senior
Indebtedness, whether or not such Non-payment Default has been cured or waived
or has ceased to exist; and (z) such Designated Senior Indebtedness has been
discharged or paid in full in cash, immediately after which, in the case of
clause (w), (x), (y) or (z), the Company or any Guarantor, as the case may be,
must resume making any and all required payments, including missed payments, in
respect of its obligations under the Notes. Notwithstanding the foregoing, (A)
not more than one Payment Blockage Period may be commenced in any period of 365
consecutive days and (B) no default or event of default with respect to the
Designated Senior Indebtedness of the Company or any Guarantor that was the
subject of a Payment Blockage Notice which existed or was continuing on the date
of the giving of any Payment Blockage Notice shall be or serve as the basis for
the giving of a subsequent Payment Blockage Notice whether or not within a
period of 365 consecutive days unless such default or event of default shall
have been cured or waived for a period of at least 90 consecutive days after
such date. Notwithstanding anything in this Indenture to the contrary, there
must be 180 consecutive days in any 365-day period in which no Payment Blockage
Period is in effect.
(c) Notwithstanding the foregoing, Holders of Notes may receive and
retain Permitted Junior Securities and payment from the money or the proceeds
held in any defeasance trust described under Article 8, and no such receipt or
retention will be contractually subordinated in right of payment to any Senior
Indebtedness or subject to the restrictions described in this Article 10.
SECTION 10.04. Acceleration of Notes. If payment of the Notes is
accelerated because of an Event of Default, the Company shall promptly notify
the Credit Facility Agent and each holder of the Senior Indebtedness of the
Company or any Guarantor of the acceleration.
71
SECTION 10.05. When Distributions Must Be Paid Over. In the event that
any payment or distribution of assets of the Company or any Guarantor, whether
in cash, property or securities, shall be received by the Trustee or the Holders
of Notes at a time when such payment or distribution is prohibited by this
Article 10, such payment or distribution shall be segregated from other funds or
assets and held in trust for the benefit of the holders of Senior Indebtedness
of the Company or such Guarantor, as the case may be, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders of
the Senior Indebtedness of the Company or such Guarantor, as the case may be,
remaining unpaid or unprovided for or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness of the Company or such
Guarantor, as the case may be, may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness of the
Company or such Guarantor, as the case may be, held or represented by each, for
application to the payment of all Senior Indebtedness of the Company or such
Guarantor, as the case may be, remaining unpaid, to the extent necessary to pay
or to provide for the payment in full in cash of all such Senior Indebtedness
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
With respect to the holders of Senior Indebtedness of the Company or
any Guarantor, the Trustee undertakes to perform only such obligations on its
part as are specifically set forth in this Article 10, and no implied covenants
or obligations with respect to any holders of the Senior Indebtedness of the
Company or any Guarantor shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness of the Company or any Guarantor and shall not be liable to
any holders of such Senior Indebtedness if the Trustee shall pay over or
distribute to, or on behalf of, Holders or the Company or any other Person,
money or assets to which any holders of such Senior Indebtedness are entitled
pursuant to this Article 10, except if such payment is made at a time when a
Trust Officer has knowledge that the terms of this Article 10 prohibit such
payment.
SECTION 10.06. Notice. Neither the Trustee nor the Paying Agent shall
at any time be charged with the knowledge of the existence of any facts that
would prohibit the making of any payment to or by the Trustee or Paying Agent
under this Article 10, unless and until the Trustee or Paying Agent shall have
received written notice thereof from the Company or such Guarantor or one or
more holders of the Senior Indebtedness of the Company or such Guarantor, as the
case may be, or a Representative of any holders of such Senior Indebtedness;
and, prior to the receipt of any such written notice, the Trustee or Paying
Agent shall be entitled to assume conclusively that no such facts exist. The
Trustee shall be entitled to rely on the delivery to it of written notice by a
Person representing itself to be a holder of the Senior Indebtedness of the
Company or such Guarantor (or a Representative thereof) to establish that such
notice has been given.
The Company shall promptly notify the Trustee and the Paying Agent in
writing of any facts it knows that would cause a payment of principal of, or
premium, if any, or interest (including Special Interest, if any) on, the Notes
or any other Obligation in respect of the Notes
72
to violate this Article 10, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Indebtedness of the Company or any
Guarantor provided in this Article 10 or the rights of holders of such Senior
Indebtedness under this Article 10.
SECTION 10.07. Subrogation. After all Senior Indebtedness of the
Company or any Guarantor has been paid in full in cash and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari-passu with the Notes) to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness to
the extent that distributions otherwise payable to the Holders have been applied
to the payment of such Senior Indebtedness A distribution made under this
Article 10 to holders of the Senior Indebtedness of the Company or any Guarantor
that otherwise would have been made to Holders is not, as between the Company or
such Guarantor, as the case may be, and Holders, a payment by the Company or
such Guarantor, as the case may be, on its Senior Indebtedness.
SECTION 10.08. Relative Rights. This Article 10 defines the relative
rights of Holders and holders of the Senior Indebtedness of the Company or any
Guarantor. Nothing in this Indenture shall: (1) impair, as between the Company
or a Guarantor, as the case may be, and Holders, the Obligations of the Company
or any Guarantor, which are absolute and unconditional, to pay principal of, and
premium, if any, and interest (including Special Interest, if any) on the Notes
in accordance with their terms; (2) affect the relative rights of Holders and
the creditors of the Company or any Guarantor other than their rights in
relation to holders of the Senior Indebtedness of the Company or any Guarantor;
or (3) prevent the Trustee or any Holder from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders of the
Senior Indebtedness of the Company or any Guarantor to receive distributions and
payments otherwise payable to Holders.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in any Note is intended to or shall impair, as between the Company, any
Guarantor and the Holders, the Obligations of the Company and the Guarantors,
which are absolute and unconditional, to pay to the Holders the principal of,
and premium, if any, and interest (including Special Interest, if any) on the
Notes as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Company and the Guarantors other than the holders of the Senior
Indebtedness of the Company or any Guarantor, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture, subject to the
rights, if any, under this Article 10 of the holders of such Senior
Indebtedness.
The failure to make a payment on account of principal of, or interest
on the Notes by reason of any provision of this Article 10 shall not be
construed as preventing the occurrence of an Event of Default under Section
6.01.
73
SECTION 10.09. The Company, Guarantors and Holders May Not Impair
Subordination. (a) No right of any holder of the Senior Indebtedness of the
Company or any Guarantor to enforce the subordination as provided in this
Article 10 shall at any time or in any way be prejudiced or impaired by any act
or failure to act by the Company or any Guarantor or by any noncompliance by the
Company or any Guarantor with the terms, provisions and covenants of this
Indenture or the Notes or any other agreement regardless of any knowledge
thereof with which any such holder may have or be otherwise charged.
(b) Without in any way limiting Section 10.09(a), the holders of any
Senior Indebtedness of the Company or any Guarantor may, at any time and from
time to time to the extent not otherwise prohibited by this Indenture, without
the consent of or notice to any Holders, without incurring any liabilities to
any Holder and without impairing or releasing the subordination and other
benefits provided in this Indenture or the Holders' obligations to the holders
of such Senior Indebtedness, even if any Holder's right of reimbursement or
subrogation or other right or remedy is affected, impaired or extinguished
thereby, do any one or more of the following: (i) amend, renew, exchange,
extend, modify, increase or supplement in any manner such Senior Indebtedness or
any instrument evidencing or guaranteeing or securing such Senior Indebtedness
or any agreement under which such Senior Indebtedness is outstanding (including,
but not limited to, changing the manner, place or terms of payment or changing
or extending the time of payment of, or renewing, exchanging, amending,
increasing or altering, (x) the terms of such Senior Indebtedness, (y) any
security for, or any Guarantee of, such Senior Indebtedness, (z) any liability
of any obligor on such Senior Indebtedness (including any guarantor) or any
liability Incurred in respect of such Senior Indebtedness) (ii) sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any property pledged, mortgaged or otherwise securing such
Senior Indebtedness or any liability of any obligor thereon, to such holder, or
any liability Incurred in respect thereof; (iii) settle or compromise any such
Senior Indebtedness or any other liability of any obligor of such Senior
Indebtedness to such holder or any security therefor or any liability Incurred
in respect thereof and apply any sums by whomsoever paid and however realized to
any liability (including, without limitation, payment of any of the Senior
Indebtedness) in any manner or order; and (iv) fail to take or to record or
otherwise perfect, for any reason or for no reason, any lien or security
interest securing such Senior Indebtedness by whomsoever granted, exercise or
delay in or refrain from exercising any right or remedy against any obligor or
any guarantor or any other Person, elect any remedy and otherwise deal freely
with any obligor and any security for such Senior Indebtedness or any liability
of any obligor to the holders of such Senior Indebtedness or any liability
Incurred in respect of such Senior Indebtedness.
SECTION 10.10. Distribution or Notice to Representative. Whenever a
distribution is to be made, or a notice given, to holders of Senior Indebtedness
of the Company or any Guarantor, the distribution may be made and the notice
given to their Representative, if any. If any payment or distribution of the
Company's assets is required to be made to holders of any of the Senior
Indebtedness of the Company or any Guarantor pursuant to this Article 10, the
Trustee and the Holders shall be entitled to rely upon any order or decree of
any court of competent jurisdiction,
74
or upon any certificate of a Representative of such Senior Indebtedness or a
Custodian, in ascertaining the holders of such Senior Indebtedness entitled to
participate in any such payment or distribution, the amount to be paid or
distributed to holders of such Senior Indebtedness and all other facts pertinent
to such payment or distribution or to this Article 10.
SECTION 10.11. Rights of Trustee and Paying Agent. The Trustee or
Paying Agent may continue to make payments on the Notes unless prior to any
payment date it has received written notice of facts that would cause a payment
of principal of, or premium, if any, or interest (including Special Interest, if
any) on the Notes to violate this Article 10. Only the Company, a Guarantor, a
Representative of Senior Indebtedness, or a holder of Senior Indebtedness that
has no Representative may give such notice.
To the extent permitted by the TIA, the Trustee in its individual or
any other capacity may hold Indebtedness of the Company or any Guarantor
(including Senior Indebtedness) with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights.
SECTION 10.12. Authorization to Effect Subordination. Each Holder of a
Note by its acceptance thereof authorizes and directs the Trustee on its behalf
to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 10, and appoints the Trustee as such
Holder's attorney-in-fact for any and all such purposes (including, without
limitation, the timely filing of a claim for the unpaid balance of the Note that
such Holder holds in the form required in any Insolvency or Liquidation
Proceeding and causing such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Indebtedness of the Company or any Guarantor are
hereby authorized, and shall have the right (without any duty), to file an
appropriate claim for and on behalf of the Holders.
ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee. (a) Each Guarantor hereby unconditionally,
jointly and severally, guarantees (each a "NOTE GUARANTEE") to each Holder of a
Note authenticated and delivered by the Trustee that: (i) the principal of,
premium, interest (including Special Interest, if any) on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest (including
Special Interest, if any), and premium, if any, on the Notes, if any, to the
extent lawful, and all other Obligations of the Company to the Holders or the
Trustee under this Indenture and the Notes will
75
be promptly paid in full, all in accordance with the terms of this Indenture and
the Notes; and (ii) in case of any extension of time of payment or renewal of
any Notes or any of such other Obligations, that the Notes will be promptly paid
in full when due in accordance with the terms of such extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Each Guarantor hereby further agrees that its Obligations under this
Indenture and the Notes shall, subject to Section 11.05, be unconditional,
regardless of the validity, legality or enforceability of this Indenture or the
Notes, the absence of any action to enforce this Indenture or the Notes, any
waiver or consent by any Holder with respect to any provisions this Indenture or
the Notes, any modification or amendment of, or supplement of, this Indenture or
the Notes, the recovery of any judgment against the Company or any action to
enforce any such judgment, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of such Guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that its Note Guarantee will not be discharged
except by complete performance by the Company of such Obligations. If any Holder
or the Trustee is required by any court or otherwise to return to the Company,
such Guarantor or a Custodian of the Company or such Guarantor any amount paid
by the Company or such Guarantor to the Trustee or such Holder, its Note
Guarantee shall, to the extent previously discharged as a result of any such
payment, be immediately reinstated and be in full force and effect. Each
Guarantor hereby acknowledges and agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Company's Obligations under this Indenture and the Notes may be accelerated as
provided in Article 6 for purposes of its Note Guarantee notwithstanding any
stay, injunction or other prohibition preventing such acceleration, and (y) in
the event of any declaration of acceleration of the Company's Obligations under
this Indenture and the Notes as provided in Article 6, such Obligations (whether
or not due and payable) shall forthwith become due and payable by such Guarantor
for the purpose of its Note Guarantee.
(b) Upon making any payment with respect to the Company hereunder, a
Guarantor shall be subrogated to the rights of the payee against the Company
with respect to such payment; provided that no Guarantor shall enforce any
payment by way of subrogation or contribution until all Obligations of the
Company under this Indenture have been paid in full.
SECTION 11.02. Trustee to Include Paying Agent. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company,
the term "Trustee" as used in this Article 11 shall (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 11 in place of the Trustee.
SECTION 11.03. Subordination of Guarantee. Each Guarantor's Obligations
under its Note Guarantee shall be junior and subordinated in right of payment to
any Senior Indebtedness of such Guarantor in the same manner and to the same
extent as the Notes are subordinated to
76
Senior Indebtedness of the Company pursuant to Article 10. Any Payment Blockage
Notice given to the Trustee in respect of the Company's Designated Senior
Indebtedness pursuant to Section 10.03 shall be deemed to be a Payment Blockage
Notice given to the Trustee in respect of such Guarantor's Designated Senior
Indebtedness and any Payment Blockage Notice given to the Trustee in respect of
such Guarantor's Designated Senior Indebtedness pursuant to this Section 11.03
shall be deemed to be a Payment Blockage Notice given to the Trustee in respect
of the Company's Designated Senior Indebtedness.
In the event of a conflict between the provisions of Section 10.03 and
the provisions of Section 10.03 as read to apply to such Guarantor's Note
Guarantee pursuant to this Section 11.03, the provisions of Section 10.03 shall
apply and govern this Indenture.
SECTION 11.04. Senior Subordinated Debt of Guarantor. Each Guarantor
hereby agrees that it will not Incur, Guarantee or otherwise become liable for
any Indebtedness that is subordinated or junior in right of payment to any
Senior Indebtedness of such Guarantor unless such Indebtedness is pari passu
with or is expressly subordinated in right of payment to the Notes.
SECTION 11.05. Limits of Guarantee. (a) Notwithstanding anything to the
contrary in this Article 11, the aggregate amount of the Obligations guaranteed
under this Indenture by each Guarantor shall be limited in amount to the lesser
of (a) the maximum amount that would not render such Guarantor's obligations
subject to avoidance under applicable fraudulent conveyance provisions of the
United States Bankruptcy Code or any comparable provision of any applicable
state law and (b) the maximum amount that would not render the Note Guarantee an
improper corporate distribution by such Guarantor under applicable state law.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with the duties imposed by operation
of Section 318(c) of the TIA, the imposed duties shall control.
SECTION 12.02. Notices. Any notice or communication by the Company or
the Trustee to the other is duly given if in writing and delivered in person,
mailed by registered or certified mail, postage prepaid, return receipt
requested or delivered by telecopier or overnight air courier guaranteeing next
day delivery to the other's address:
77
If to the Company or the Guarantors:
Eagle-Picher Industries, Inc.
250 East Fifth Street
Cincinnati, Ohio 445202
Telecopier: (513) 721-7010
Attention: President
If to the Trustee:
The Bank of New York
101 Barclay St. Floor 21 West
New York, NY 10286
Telecopier: (212) 815-5915
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: (i) at the time delivered by hand, if
personally delivered; (ii) the date receipt is acknowledged, if mailed by
registered or certified mail; (iii) when answered back, if telecopied and (iv)
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail to his or her address shown on the register maintained by the Registrar.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above within the time prescribed,
it is duly given, whether or not the addressee receives it. If the Company mails
a notice or communication to Holders, it shall mail a copy to the Trustee and
each Agent at the same time.
SECTION 12.03. Communication by Holders with Other Holders. Holders may
communicate pursuant to section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other Person shall have the protection of section
312(c) of the TIA.
SECTION 12.04. Certificate and Opinion As to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee: (a) an Officers'
Certificate (which shall include the statements set forth in Section 12.05)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and (b) an Opinion of Counsel (which shall
include the statements set
78
forth in Section 12.05) stating that, in the opinion of such counsel, all such
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
section 314(a)(4) of the TIA) shall include: (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with, and (4) a statement as to whether, in such Person's opinion, such
condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
SECTION 12.07. Legal Holidays. If a payment date is a not a Business
Day at a place of payment, payment may be made at that place on the next
succeeding day that is a Business Day , and no interest shall accrue for the
intervening period.
SECTION 12.08. No Recourse Against Others. No director, officer,
employee, incorporator or direct or indirect stockholder or Affiliate of the
Company or any Guarantor (other than the Company and any Guarantor), as such,
shall have any liability for any obligation of the Company under this Indenture,
the Notes Guarantees or the Notes or for any claim based on, in respect of, or
by reason of, any such obligation or the creation of any such obligation. Each
Holder by accepting a Note waives and releases such Persons from all such
liability and such waiver and release is part of the consideration for the
Issuance of the Notes.
SECTION 12.09. Counterparts. This Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 12.10. Initial Appointments, Compliance Certificates. The
Company initially appoints the Trustee as Paying Agent, Registrar (subject to
Section 2.03 and 2.06) and authenticating agent. The first compliance
certificate to be delivered by the Company to the Trustee pursuant to Section
4.03 shall be for the fiscal year ending on November 30, 1998.
SECTION 12.11. Governing Law. The internal laws of the State of New
York shall govern this Indenture and the Notes, without regard to the conflict
of laws provisions thereof.
79
SECTION 12.12. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its Subsidiaries, and no other indenture, loan or debt
agreement may be used to interpret this Indenture.
SECTION 12.13. Successors. All agreements of the Company and the
Guarantors in this Indenture and the Notes shall bind any successors of the
Company and such Guarantors, respectively. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.14. Severability. If any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 12.15. Third Party Beneficiaries. Holders of Senior
Indebtedness are third party beneficiaries of this Indenture, and any of them
(or their Representative) shall have the right to enforce the provisions of this
Indenture that benefit such holders.
SECTION 12.16. Table of Contents, Headings, Etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part of this
Indenture, and shall in no way modify or restrict any of the terms or provisions
of this Indenture.
80
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date and year first written above.
E-P ACQUISITION, INC.
By: /s/ JOEL P. WYLER
----------------------------
Name: Joel P. Wyler
Title: President
DAISY PARTS, INC.
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: Authorized Person
EAGLE-PICHER DEVELOPMENT
COMPANY, INC.
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: President
EAGLE-PICHER HOLDINGS, INC.
By: /s/ JOEL P. WYLER
----------------------------
Name: Joel P. Wyler
Title: President
EAGLE-PICHER FAR EAST, INC.
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: Authorized Person
EAGLE-PICHER FLUID SYSTEMS,
INC.
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: Authorized Person
EAGLE-PICHER MINERALS, INC.
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: Authorized Person
EAGLE-PICHER TECHNOLOGIES,
LLC
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: Director-Manager
HILLSDALE TOOL &
MANUFACTURING CO.
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: Authorized Person
MICHIGAN AUTOMOTIVE
RESEARCH CORPORATION
By: /s/ ANDRIES RUIJSSENAARS
----------------------------
Name: Andries Ruijssenaars
Title: Authorized Person
THE BANK OF NEW YORK
as Trustee
By: /s/ MARY JANE MORRISSEY
----------------------------
Name: Mary Jane Morrissey
Title: Vice President
EXHIBIT A
(FORM OF FACE OF NOTE)
[Legend if Note is a Transfer Restricted Note]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY (1) BY ITS ACQUISITION HEREOF REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT AND (2) IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER
THAT (X) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i)
(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES
TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (ii) TO THE COMPANY OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (X) ABOVE.
A-1
[Additional Legend if Note is a Global Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY 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 HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.06,
2.07 AND 2.08 OF THE INDENTURE.
[Additional Legend if Note is a Regulation S Temporary Global Note]
THIS NOTE IS A TEMPORARY GLOBAL SECURITY. PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD
BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO
PURCHASED SUCH INTEREST IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). BENEFICIAL
INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR DEFINITIVE SECURITIES. TERMS IN THIS
LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT.
A-2
E-P ACQUISITION, INC.
TO BE MERGED INTO
EAGLE-PICHER INDUSTRIES, INC.
9 3/8% SENIOR SUBORDINATED NOTES DUE 2008
No. ____________ $__________
[CUSIP][CINS] NO.
E-P Acquisition, Inc., a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", 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 ___________________ Dollars on March 1, 2008.
Interest Payment Dates: March 1 and September 1, commencing
March 1, 1998
Record Dates: February 15 and August 15
Pursuant to the Indenture, the payment of principal of and premium, if
any, and interest and, if applicable, Special Interest on this Note is
unconditionally guaranteed by Eagle-Picher Holdings, Inc., and its successors
("PARENT") and by the Subsidiary Guarantors (as defined in the Indenture)
(together with Parent, the "GUARANTORS"), and such other Persons as may from
time to time execute and deliver to the Trustee a counterpart of the Indenture
as a Subsidiary Guarantor.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and as more fully specified in the Indenture, which
further provisions shall for all purposes have the same effect as if set forth
at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
E-P ACQUISITION, INC.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:_______________
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
---------------------------------
Authorized Signatory
FORM OF ALTERNATIVE CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
---------------------------------
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-4
FORM OF REVERSE OF NOTE
1. INTEREST. E-P Acquisition, Inc. (the "Company") promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Cash interest will accrue at 9.375% per annum until maturity
and will be payable semi-annually in arrears in cash on March 1 and September 1
of each year commencing March 1, 1998, or if any such day is not a Business Day
on the next succeeding Business Day (each an "Interest Payment Date"). Interest
on this Note will accrue from the most recent date on which interest has been
paid or, if no interest has been paid, from the original date of issue. To the
extent lawful, the Company shall pay interest on overdue principal, premium, if
any, interest and Special Interest, if any, from time to time on demand at the
rate of 11.375% per annum, compounded semi-annually. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
[In the event that one or more Registration Defaults shall have
occurred and be continuing under the Registration Rights Agreement, then Special
Interest (as defined therein) (in addition to the interest otherwise due hereon)
will accrue on the principal amount of the Notes and the New Notes (in addition
to the stated interest on the Notes and the New Notes) from and including the
date on which the first such Registration Default shall have occurred to but
excluding the date on which all such Registration Defaults have been cured.
Special Interest will accrue at a rate of 0.25% per annum during the 90-day
period immediately following the occurrence of the first such Registration
Default and shall increase by 0.25% per annum at the end of each subsequent
90-day period, but in no event shall such rate exceed 1.5% per annum in the
aggregate as a result of any Registration Default or Defaults. All accrued
Special Interest, if any, will be paid by the Company or the Guarantors, in
arrears, on each Interest Payment Date, commencing September 1, 1998. Upon the
cure of all Registration Defaults, the accrual of Special Interest will
cease.](1)
[There shall also be payable in respect of this Note all Special
Interest that may have accrued on the Note for which this Note was exchanged (as
defined in such Note) pursuant to the Exchange Offer or otherwise pursuant to a
Registration of such Note, such Special Interest to be payable in accordance
with the terms of such Note.](2)
2. METHOD OF PAYMENT. The Company will pay interest on this Note to
the Person who is the registered Holder of this Note at the close of business on
the record date for the next Interest Payment Date, which record date shall be
February 15 and August 15 of each year (each a "Record Date"); notwithstanding
the foregoing, the first record date shall be February 24, 1998. Holders must
surrender Notes to a Paying Agent, as defined below, to
- --------
(1) To be included in Notes but not New Notes.
(2) To be included in New Notes.
A-5
collect principal payments on such Notes. Principal of, premium, if any,
interest and Special Interest, if any, on, the Notes will be payable at the
office or agency of the Company maintained for such purpose within the City and
State of New York or, at the option of the Company by wire transfer of
immediately available funds or, in the case of certificated securities only, by
mailing a check to the registered address of the Holder. Until otherwise
designated by the Company, the Company's office or agency will be the office of
the Trustee maintained for such purpose.
3. PAYING AGENT AND REGISTRAR. (a) The Bank of New York (the "Trustee")
will initially act as the Paying Agent and Registrar. The Company may appoint
additional paying agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar without prior notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
(b) Pursuant to the Indenture, the Company has appointed the Trustee
as transfer and exchange agent for the purpose of any transfer or
exchange of the Notes.
(c) Holders shall present Notes to the Trustee, as transfer and
exchange agent.
4. INDENTURE. The Company has issued the Notes under an Indenture,
dated as of February 24, 1998 (the "Indenture"), among the Company, as issuer of
the Notes, the Guarantors party thereto and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code
'SS''SS' 77aaa-77bbbb) as in effect on the date of the original issuance of the
Notes (the "Trust Indenture Act"). The Notes are subject to, and qualified by,
all such terms, certain of which are summarized herein, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of such terms (all
capitalized terms not defined herein shall have the meanings assigned to them in
the Indenture). The Notes are unsecured general obligations of the Company
limited to $220,000,000 in aggregate principal amount.
5. REDEMPTION PROVISIONS. (a) The Notes are not subject to any
mandatory sinking fund redemption prior to maturity.
(b) Except as set forth below in this Section 5, the Notes may not be
redeemed at the option of the Company prior to March 1, 2003. On March
1, 2003 and thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as
percentages of the principal amount of the Notes) set forth below,
together with accrued and unpaid interest if any thereon to the
applicable redemption date, if redeemed during the twelve-month period
beginning on March 1 of the years indicated below:
A-6
YEAR PERCENTAGE
------------------------------------------- ----------
2003....................................... 104.688%
2004....................................... 103.125%
2005....................................... 101.563%
2006 and thereafter........................ 100.000%
(c) In addition to the Company's right to redeem the Notes as set
forth in Section 5(b), at any time prior to March 1, 2001, the Company
may redeem up to 35% of the aggregate principal amount of the Notes
outstanding on the Issue Date with the net cash proceeds of one or more
Equity Offerings at a redemption price equal to 109.375% of the
principal amount thereof, plus accrued and unpaid interest (including
Special Interest, if any) to the redemption date; provided that (x) at
least $100 million aggregate principal amount of the Notes remains
outstanding immediately after the occurrence of such redemption and (y)
such redemption occurs within 60 days of the date of the closing of any
such Equity Offering.
(d) If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from
among the outstanding Notes on a pro rata basis, by lot or by any other
method permitted in the Indenture. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each holder whose Notes are to be redeemed at the registered address
of such holder. On and after the redemption date, interest will cease
to accrue on the Notes or portions thereof called for redemption.
6. MANDATORY OFFERS. (a) Within 30 days after any Change of Control
Trigger Date or Asset Sale Trigger Date, the Company shall mail to the Trustee
(who shall mail to each Holder) a notice stating certain details as set forth in
Section 3.08 of the Indenture in connection with the Offer that the Company is
obligated under the Indenture to make to Holders in such circumstances.
(b) Holders may tender all or, subject to Section 8 below, any
portion of their Notes by completing the attachment hereto entitled
"OPTION OF HOLDER TO ELECT PURCHASE" in an Offer.
(c) Upon a Change of Control, any Holder of Notes will have the right
to cause the Company to purchase the Notes of such Holder, in whole or
in part in integral multiples of aggregate principal amount of $1,000,
at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest (including Special Interest,
if any), if any, to the date of repurchase, as provided in, and subject
to the terms of the Indenture.
A-7
(d) Upon there being at least $5,000,000 in Excess Proceeds relating
to one or more Asset Sales, any Holder of Notes will have the right to
cause the Company to purchase the Notes of such Holder, in whole or in
part in integral multiples of aggregate principal amount of $1,000, at
a purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, and Special Interest, if any,
to the date such Net Proceeds Offer is consummated, as provided in, and
subject to the terms of the Indenture.
(e) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail or wire transfer, if permitted under the Indenture, to each
Holder of Notes or portions thereof accepted for payment an amount
equal to Change of Control Price or Offered Price, as the case may be,
(ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder
thereof, and (iii) with respect to any Note accepted for payment in
part, the Company shall issue and the Trustee shall authenticate and
mail to each such Holder a new Note equal in principal amount to the
unpurchased portion of the tendered Note.
(f) The Company will (i) announce the results of the Offer to Holders
on or as soon as practicable after the Purchase Date, and (ii) comply
with Rule 14e-1 under the Securities Exchange Act of 1934, as amended,
and any other securities laws and regulations to the extent applicable
to any Offer.
7. NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed or
purchased in part, but only in multiples of $1,000 principal amount unless all
Notes held by a Holder are to be redeemed or purchased. On or after any date on
which Notes are redeemed or purchased, interest ceases to accrete or accrue, as
the case may be, on the Notes or portions thereof called for redemption or
accepted for purchase on such date.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form, without coupons, in denominations of $1,000 principal amount of maturity
and integral multiples thereof. The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture. Holders seeking to transfer
or exchange their Notes may be required, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not exchange
or register the transfer of any Note or portion of a Note selected for
redemption or tendered pursuant to an Offer. Neither the Trustee or the
Registrar shall be required to issue, register the transfer of or exchange any
Note (i) to register the transfer of or exchange any Note selected for
redemption, (ii) to register the transfer of or exchange any Note for a period
of 15 days before the mailing of a notice of redemption ending on the date of
such mailing, (iii) to register the transfer or exchange of a Note between a
record date and the next succeeding interest payment date.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as the owner of the Note for all purposes.
A-8
10. AMENDMENTS AND WAIVERS. (a) Subject to certain exceptions, the
Indenture and the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes), and any existing Default or Event of Default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes); provided that: (i) no such
modification or amendment may, without the consent of the holders of 75% in
aggregate principal amount of such series of Notes then outstanding, amend or
modify the obligations of the Company under Section 4.15 of the Indenture (or
the definitions related thereto) that could adversely affect the rights of any
holder of the Notes; and (ii) without the consent of each holder affected, the
Company and the Trustee may not: (w) extend the maturity of any Note; (x) affect
the terms of any scheduled payment of interest on or principal of the Notes
(including without limitation any redemption provisions); (y) take any action
that would subordinate the Notes or the Note Guarantees to any other
Indebtedness of the Company or any of Guarantors, respectively (except as
provided in Article 10), or otherwise affect the ranking of the Notes or the
Note Guarantees; or (z) reduce the percentage of holders necessary to consent to
an amendment, supplement or waiver to this Indenture.
(b) Notwithstanding section 10(a) above, the Company, the Guarantors
and the Trustee may amend or supplement the Indenture or the Notes,
without the consent of any Holder, to: cure any ambiguity, defect or
inconsistency; provide for uncertificated Notes in addition to or in
place of certificated Notes; provide for the assumption of the
obligations to the Holders of the Company, or the Guarantors, as the
case may be, in the event of any merger or reorganization involving the
Company, or a Guarantor, as the case may be, that is permitted under
Article 5 of the Indenture; make any change that would provide any
additional rights or benefits to Holders or does not adversely affect
the legal rights under the Indenture of any Holder; comply with the
requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
11. DEFAULTS AND REMEDIES. Events of Default include: (i) failure by
the Company to pay interest on any of the Notes when it becomes due and payable
and the continuance of any such failure for 30 days; (ii) failure by the Company
to pay the principal or premium, if any, on any of the Notes when it becomes due
and payable, whether at stated maturity, upon redemption, upon acceleration or
otherwise; (iii) failure by the Company to comply with any of its agreements or
covenants described under Article 5 of the Indenture, or in respect of its
obligations to make a Change of Control Offer or a Net Proceeds Offer described
in Section 4.15 and 4.16 of the Indenture, respectively; (iv) failure by the
Company to comply with any other covenant in the Indenture and continuance of
such failure for 60 days after notice of such failure has been given to the
Company by the Trustee or by the holders of
A-9
at least 25% of the aggregate principal amount of the Notes then outstanding;
(v) failure by either the Company or any of its Restricted Subsidiaries to make
any payment when due after the expiration of any applicable grace period, in
respect of any Indebtedness of the Company or any of such Restricted
Subsidiaries, or the acceleration of the maturity of such Indebtedness by the
holders thereof because of a default, with an aggregate outstanding principal
amount for all such Indebtedness under this clause (v) of $10.0 million or more
(but excluding in any event any such Indebtedness that is paid when so due after
expiration of any applicable grace period, or upon acceleration of the maturity
thereof, pursuant to any letter of credit); (vi) one or more final,
non-appealable judgments or orders that exceed $10.0 million in the aggregate
for the payment of money have been entered by a court or courts of competent
jurisdiction against the Company or any Subsidiary of the Company and such
judgment or judgments have not been satisfied, stayed, annulled or rescinded
within 60 days of being entered; (vii) certain events of bankruptcy, insolvency
or reorganization involving the Parent, the Company or any Significant
Subsidiary; and (viii) except as permitted by the Indenture, any Note Guarantee
ceases to be in full force and effect or any Guarantor repudiates its
obligations under any Note Guarantee.
If an Event of Default (other than an Event of Default specified in
clause (vii) above with respect to the Company), shall have occurred and be
continuing under the Indenture, the Trustee, by written notice to the Company,
or the holders of at least 25% in aggregate principal amount of the Notes then
outstanding by written notice to the Company and the Trustee may declare all
amounts owing under the Notes to be due and payable immediately. Upon such
declaration of acceleration, the aggregate principal of, premium, if any, and
interest on the outstanding Notes shall immediately become due and payable. If
an Event of Default results from bankruptcy, insolvency or reorganization with
respect to the Company, all outstanding Notes shall become due and payable
without any further action or notice. In certain cases, the holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
an existing Default or Event of Default and its consequences, except a default
in the payment of principal of, premium, if any, and interest on the Notes.
In the case of an Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes under the provisions
of Article 3 of the Indenture and under the Notes, an equivalent premium shall
also become and be immediately due and payable, to the extent permitted by law,
upon the acceleration of the Notes. If an Event of Default occurs prior to March
1, 2003 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to March 1, 2003, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable, to the extent permitted by law, in an amount equal to 10.0%.
A-10
The holders may not enforce the provisions of the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
holders of a majority in principal amount of the Notes then outstanding may
direct the Trustee in its exercise of any trust or power; provided however, that
such direction does not conflict with the terms of the Indenture. The Trustee
may withhold from the holders notice of any continuing Default or Event of
Default (except any Default or Event of Default in payment of principal of,
premium, if any, or interest on the Notes) if the Trustee determines that
withholding such notice is in the holders' interest.
12. GUARANTEE. Each Guarantor unconditionally, jointly and severally,
guarantees (each a "NOTE GUARANTEE") to each Holder of a Note authenticated and
delivered by the Trustee that: (i) the principal of, premium, interest
(including Special Interest, if any) on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest and (including, Special
Interest, if any), and premium, if any, on the Notes, if any, to the extent
lawful, and all other Obligations of the Company to the Holders or the Trustee
under this Indenture and the Notes will be promptly paid in full, all in
accordance with the terms of this Indenture and the Notes; and; (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
Obligations, that the Notes will be promptly paid in full when due in accordance
with the terms of such extension or renewal, whether at stated maturity, by
acceleration or otherwise; provided that notwithstanding anything to the
contrary herein or in Article 11 of the Indenture, the aggregate amount of the
Obligations guaranteed under the Indenture by any Guarantor shall be limited in
amount to the lesser of (x) the maximum amount that would not render such
Guarantor's obligations subject to avoidance under applicable fraudulent
conveyance provisions of the United States Bankruptcy Code or any comparable
provision of any applicable state law and (y) the maximum amount that would not
render the Note Guarantee of such Guarantor an improper corporate distribution
by such Guarantor under applicable state law.
13. ADDITIONAL NOTE GUARANTEES. If the Company or any of its
Subsidiaries shall acquire or create another Subsidiary (other than (x) any
Foreign Subsidiary or (y) a Subsidiary that has been designated as an
Unrestricted Subsidiary or (z) an Immaterial Subsidiary), then within 10 days
after acquiring or creating such Subsidiary, the Company will cause each such
Subsidiary to execute and deliver to the Trustee a counterpart of this Indenture
as a Subsidiary Guarantor.
14. SUBORDINATION. (a) All Obligations owed under and in respect of
the Notes are subordinated in right of payment, to the extent and in the manner
provided in Article 10 of the Indenture, to the prior payment in full in cash of
all Obligations owed under and in respect of all Senior Indebtedness of the
Company and the Guarantors, and the subordination of the Notes is for the
benefit of all holders of all Senior Indebtedness, whether outstanding on the
Closing Date or Incurred thereafter. The Company agrees, and each Holder by
accepting a Note agrees, to the subordination.
A-11
(b) Each Guarantor's Obligations under its Notes Guarantee shall be
junior and subordinated in right of payment to any Senior Indebtedness
of the Guarantor in the manner set forth in more detail in Section
11.03 of the Indenture.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or direct or indirect stockholder of the Company or any Guarantor
(other than the Company and any Subsidiary Guarantor), as such, shall have any
liability for any obligation of the Company or such Subsidiary Guarantor under
the Indenture or the Notes or for any claim based on, in respect of, or by
reason of, any such obligation or the creation of any such obligation. Each
Holder by accepting a Note waives and releases such Persons from all such
liability, and such waiver and release is part of the consideration for the
issuance of the Notes.
17. MERGERS AND CERTAIN OTHER TRANSACTIONS. The Company will not, in a
single transaction or a series of related transactions, (i) consolidate or merge
with or into (other than a merger with a Wholly-Owned Restricted Subsidiary
solely for the purpose of changing the Company's jurisdiction of incorporation
to another State of the United States), or sell, lease, transfer, convey or
otherwise dispose of or assign all or substantially all of the assets of the
Company or the Company and its Subsidiaries (taken as a whole), or assign any of
its obligations under the Notes and the Indenture, to any Person or (ii) adopt a
Plan of Liquidation unless, in either case: (a) the Person formed by or
surviving such consolidation or merger (if other than the Company) or to which
such sale, lease, conveyance or other disposition or assignment shall be made
(or, in the case of a Plan of Liquidation, any Person to which assets are
transferred) (collectively, the "SUCCESSOR"), is a corporation organized and
existing under the laws of any State of the United States of America or the
District of Columbia, and the Successor assumes by supplemental indenture in a
form satisfactory to the Trustee all of the obligations of the Company under the
Notes and the Indenture; (b) immediately prior to and immediately after giving
effect to such transaction and the assumption of the obligations as set forth in
clause (a) above and the incurrence of any Indebtedness to be incurred in
connection therewith, no Default or Event of Default shall have occurred and be
continuing; and (c) immediately after and giving effect to such transaction and
the assumption of the obligations set forth in clause (a) above and the
incurrrence of any Indebtedness to be incurred in connection therewith, and the
use of any net proceeds therefrom on a pro forma basis, (1) the Consolidated Net
Worth of the Company or the Successor, as the case may be, would be at least
equal to the Consolidated Net Worth of the Company immediately prior to such
transaction and (2) the Company or the Successor, as the case may be, could meet
the Coverage Ratio Incurrence Condition; and (d) each Subsidiary Guarantor,
unless it is the other party to the transactions described above, shall have by
amendment to its guarantee confirmed that its guarantee of the Notes shall apply
to the obligations of the
A-12
Company or the Successor under the Notes and the Indenture. For purposes of this
paragraph, any Indebtedness of the Successor which was not Indebtedness of the
Company immediately prior to the transaction shall be deemed to have been
incurred in connection with such transaction.
18. GOVERNING LAW. This Note shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
the conflict of laws provisions thereof.
19. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
20. CUSIP/CINS NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP and CINS numbers, as applicable, to be printed on the Notes and has
directed the Trustee to use CUSIP and CINS numbers, as applicable, in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers printed on the Notes.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to: Eagle-Picher Industries,
Inc., 250 East Fifth Street, Cincinnati, Ohio, Attention: Secretary.
A-13
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES(3)
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Principal Amount of this
Amount of decrease in Amount of increase in Global Note following Signature of authorized
Principal Amount of this Principal Amount of this such decrease (or officer of Trustee or
Date of Exchange Global Note Global Note increase) Notes Custodian
- ------------------- ------------------------- ------------------------ ---------------------------- -----------------------
- --------
(3) This schedule should only be added if the Note is issued in global form.
A-14
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.: ______________________________________
Please print or typewrite name and address including zip code of assignee:
- ------------------------------------------------------------
- ------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- ---------------------------
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL NOTES OTHER THAN EXCHANGE NOTES,
REGULATION S PERMANENT GLOBAL NOTES AND OFFSHORE CERTIFICATED NOTES:]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
the end of the period referred to in Rule 144(k) under the Securities Act, the
undersigned confirms, without utilizing any general solicitation or general
advertising, that:
[CHECK ONE]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
OR
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Registrar shall not be
obligated to register this Note in the name of any Person other than the Holder
hereof unless and until the conditions to any such transfer or registration set
forth herein and in Section 2.08 of the Indenture shall have been satisfied.
Date: _______________ Signature: ________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
A-15
TO BE COMPLETED BY PURCHASER IF (a), ABOVE, IS CHECKED:
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ___________ Signature: _________________________________
NOTICE: To be executed by an executive
officer of the transferee
Signature Guarantee: _______________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), in
accordance with the Securities Exchange Act of 1934, as amended.)
A-16
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to
Section 4.15 of the Indenture, check the box: [ ]
If you elect to have this Note purchased by the Company pursuant to
Section 4.16 of the Indenture, check the box: [ ]
If you elect to have only part of the principal amount of this Note
purchased by the Company pursuant to Section 4.15 or 4.16 of the Indenture,
state the portion of such amount (multiples of $1,000 principal amount only):
$_________________________.
Dated: Your signature:
- ---------------------- -----------------------------------
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:__________________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), in
accordance with the Securities Exchange Act of 1934, as amended.)
A-17
EXHIBIT B
Form of Certificate of Beneficial Ownership
[Complete Form I or Form II as Applicable]
[Form I]
The Bank of New York
101 Barclay St., Floor 21 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: E-P Acquisition, Inc. (the "Company") 9 3/8% Senior Subordinated
Notes due 2008 (the "Notes") Issued under the Indenture (the
"Indenture") dated as of February 24, 1998 relating to the Notes
Dear Sirs:
We are the beneficial owners of U.S.$________ principal amount of Notes
issued under the Indenture and represented by Temporary Global Notes (as defined
in the Indenture).
We hereby certify as follows:
[CHECK A OR B AS APPLICABLE.]
[ ]A. We are a non-U.S. person (within the meaning of Regulation S
under the Securities Act of 1933, as amended).
[ ]B. We are a U.S. person (within the meaning of Regulation S
under the Securities Act of 1933, as amended) who purchased the
Notes in a transaction that did not require registration under
the Securities Act of 1933, as amended.
Accordingly, you are hereby requested to exchange our beneficial
interest in the Regulation S Temporary Global Notes for an equivalent beneficial
interest in a Regulation S Permanent Global Notes.
B-1
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF BENEFICIAL OWNER]
By:
-------------------------------
Name:
Title:
Address:
Date:________________
[Form II]
The Bank of New York
101 Barclay St., Floor 21 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: E-P Acquisition, Inc. (the "Company") 9 3/8% Senior Subordinated
Notes due 2008 (the "Notes") Issued under the Indenture (the
"Indenture") dated as of February 24, 1998 relating to the Notes
This is to certify that based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations ("Member Organizations") appearing in our records as persons being
entitled to a portion of the principal amount of Notes represented by Regulation
S Temporary Global Notes issued under the above-referenced Indenture, that as of
the date hereof, $____ principal amount of Notes represented by the Regulation S
Temporary Global Notes being submitted herewith for exchange is beneficially
owned by persons who are either (i) non-U.S. persons (within the meaning of
Regulation S under the Securities Act of 1933, as amended) or (ii) U.S. persons
who purchased the Notes in a transaction that did not require registration under
the Securities Act of 1933, as amended. We further certify that (i) we are not
submitting herewith for exchange any portion of such Regulation S Temporary
Global Notes excepted in such Member Organization certifications and (ii) as of
the date hereof we have not received any notification from any Member
Organization to the effect that the statements made by such Member Organization
with respect to any portion of
B-2
such Regulation S Temporary Global Notes submitted herewith for exchange are no
longer true and cannot be relied upon as of the date hereof. Accordingly, you
are hereby requested to exchange such beneficial interest in the Regulation S
Temporary Global Notes for an equivalent beneficial interest in a Regulation S
Permanent Global Notes.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Yours faithfully,
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, Brussels
office, as operator of the Euroclear System]
OR
[CEDEL BANK, societe anonyme]
By:
-----------------------------------------
Name:
Title:
Date:________________
B-3
EXHIBIT C
Form of Certificate to be Delivered
in Connection with Transfers
Pursuant to Regulation S
---------, ----
The Bank of New York
101 Barclay St., Floor 21 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: E-P Acquisition, Inc. (the "Company")
9 3/8% Senior Subordinated Notes due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act of 1933.
C-1
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
Authorized Signatory
C-2
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY (1) BY ITS ACQUISITION HEREOF REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT AND (2) IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER
THAT (X) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i)
(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES
TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (ii) TO THE COMPANY OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (X) ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY 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 HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.06,
2.07 AND 2.08 OF THE INDENTURE.
2
E-P ACQUISITION, INC.
TO BE MERGED INTO
EAGLE-PICHER INDUSTRIES, INC.
9 3/8% SENIOR SUBORDINATED NOTES DUE 2008
No. 1 $200,000,000
CUSIP NO. 269803AC6
E-P Acquisition, Inc., a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of Two Hundred Million Dollars on March 1, 2008.
Interest Payment Dates: March 1 and September 1, commencing
March 1, 1998
Record Dates: February 15 and August 15
Pursuant to the Indenture, the payment of principal of and premium, if
any, and interest and, if applicable, Special Interest on this Note is
unconditionally guaranteed by Eagle-Picher Holdings, Inc., and its successors
("PARENT") and by the Subsidiary Guarantors (as defined in the Indenture)
(together with Parent, the "GUARANTORS"), and such other Persons as may from
time to time execute and deliver to the Trustee a counterpart of the Indenture
as a Subsidiary Guarantor.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and as more fully specified in the Indenture, which
further provisions shall for all purposes have the same effect as if set forth
at this place.
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
E-P ACQUISITION, INC.
By: /s/ Joel P. Wyler
----------------------------
Name:
Title:
By: /s/ Peter J. Ph. Kortenhorst
----------------------------
Name:
Title:
Dated: 2/24/98
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By: /s/ Mary Jane Morrissey
---------------------------------
Authorized Signatory
4
REVERSE OF NOTE
1. INTEREST. E-P Acquisition, Inc. (the "Company") promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Cash interest will accrue at 9.375% per annum until maturity
and will be payable semi-annually in arrears in cash on March 1 and September 1
of each year commencing March 1, 1998, or if any such day is not a Business Day
on the next succeeding Business Day (each an "Interest Payment Date"). Interest
on this Note will accrue from the most recent date on which interest has been
paid or, if no interest has been paid, from the original date of issue. To the
extent lawful, the Company shall pay interest on overdue principal, premium, if
any, interest and Special Interest, if any, from time to time on demand at the
rate of 11.375% per annum, compounded semi-annually. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
In the event that one or more Registration Defaults shall have occurred
and be continuing under the Registration Rights Agreement, then Special Interest
(as defined therein) (in addition to the interest otherwise due hereon) will
accrue on the principal amount of the Notes and the New Notes (in addition to
the stated interest on the Notes and the New Notes) from and including the date
on which the first such Registration Default shall have occurred to but
excluding the date on which all such Registration Defaults have been cured.
Special Interest will accrue at a rate of 0.25% per annum during the 90-day
period immediately following the occurrence of the first such Registration
Default and shall increase by 0.25% per annum at the end of each subsequent
90-day period, but in no event shall such rate exceed 1.5% per annum in the
aggregate as a result of any Registration Default or Defaults. All accrued
Special Interest, if any, will be paid by the Company or the Guarantors, in
arrears, on each Interest Payment Date, commencing September 1, 1998. Upon the
cure of all Registration Defaults, the accrual of Special Interest will cease.
2. METHOD OF PAYMENT. The Company will pay interest on this Note to the
Person who is the registered Holder of this Note at the close of business on the
record date for the next Interest Payment Date, which record date shall be
February 15 and August 15 of each year (each a "Record Date"); notwithstanding
the foregoing, the first record date shall be February 24, 1998. Holders must
surrender Notes to a Paying Agent, as defined below, to collect principal
payments on such Notes. Principal of, premium, if any, interest and Special
Interest, if any, on, the Notes will be payable at the office or agency of the
Company maintained for such purpose within the City and State of New York or, at
the option of the Company by wire transfer of immediately available
5
funds or, in the case of certificated securities only, by mailing a check to the
registered address of the Holder. Until otherwise designated by the Company, the
Company's office or agency will be the office of the Trustee maintained for such
purpose.
3. PAYING AGENT AND REGISTRAR. (a) The Bank of New York (the "Trustee")
will initially act as the Paying Agent and Registrar. The Company may appoint
additional paying agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar without prior notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
(b) Pursuant to the Indenture, the Company has appointed the Trustee
as transfer and exchange agent for the purpose of any transfer or
exchange of the Notes.
(c) Holders shall present Notes to the Trustee, as transfer and
exchange agent.
4. INDENTURE. The Company has issued the Notes under an Indenture,
dated as of February 24, 1998 (the "Indenture"), among the Company, as issuer of
the Notes, the Guarantors party thereto and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code
'SS''SS' 77aaa-77bbbb) as in effect on the date of the original issuance of the
Notes (the "Trust Indenture Act"). The Notes are subject to, and qualified by,
all such terms, certain of which are summarized herein, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of such terms (all
capitalized terms not defined herein shall have the meanings assigned to them in
the Indenture). The Notes are unsecured general obligations of the Company
limited to $220,000,000 in aggregate principal amount.
5. REDEMPTION PROVISIONS. (a) The Notes are not subject to any
mandatory sinking fund redemption prior to maturity.
(b) Except as set forth below in this Section 5, the Notes may not be
redeemed at the option of the Company prior to March 1, 2003. On March
1, 2003 and thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as
percentages of the principal amount of the Notes) set forth below,
together with accrued and unpaid interest if any thereon to the
6
applicable redemption date, if redeemed during the twelve-month period
beginning on March 1 of the years indicated below:
YEAR PERCENTAGE
------------------------------------------- ----------
2003....................................... 104.688%
2004....................................... 103.125%
2005....................................... 101.563%
2006 and thereafter........................ 100.000%
(c) In addition to the Company's right to redeem the Notes as set
forth in Section 5(b), at any time prior to March 1, 2001, the Company
may redeem up to 35% of the aggregate principal amount of the Notes
outstanding on the Issue Date with the net cash proceeds of one or more
Equity Offerings at a redemption price equal to 109.375% of the
principal amount thereof, plus accrued and unpaid interest (including
Special Interest, if any) to the redemption date; provided that (x) at
least $100 million aggregate principal amount of the Notes remains
outstanding immediately after the occurrence of such redemption and (y)
such redemption occurs within 60 days of the date of the closing of any
such Equity Offering.
(d) If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from
among the outstanding Notes on a pro rata basis, by lot or by any other
method permitted in the Indenture. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each holder whose Notes are to be redeemed at the registered address
of such holder. On and after the redemption date, interest will cease
to accrue on the Notes or portions thereof called for redemption.
6. MANDATORY OFFERS. (a) Within 30 days after any Change of Control
Trigger Date or Asset Sale Trigger Date, the Company shall mail to the Trustee
(who shall mail to each Holder) a notice stating certain details as set forth in
Section 3.08 of the Indenture in connection with the Offer that the Company is
obligated under the Indenture to make to Holders in such circumstances.
(b) Holders may tender all or, subject to Section 8 below, any
portion of their Notes by completing the attachment hereto entitled
"OPTION OF HOLDER TO ELECT PURCHASE" in an Offer.
7
(c) Upon a Change of Control, any Holder of Notes will have the right
to cause the Company to purchase the Notes of such Holder, in whole or
in part in integral multiples of aggregate principal amount of $1,000,
at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest (including Special Interest,
if any), if any, to the date of repurchase, as provided in, and subject
to the terms of the Indenture.
(d) Upon there being at least $5,000,000 in Excess Proceeds relating
to one or more Asset Sales, any Holder of Notes will have the right to
cause the Company to purchase the Notes of such Holder, in whole or in
part in integral multiples of aggregate principal amount of $1,000, at
a purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, and Special Interest, if any,
to the date such Net Proceeds Offer is consummated, as provided in, and
subject to the terms of the Indenture.
(e) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail or wire transfer, if permitted under the Indenture, to each
Holder of Notes or portions thereof accepted for payment an amount
equal to Change of Control Price or Offered Price, as the case may be,
(ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder
thereof, and (iii) with respect to any Note accepted for payment in
part, the Company shall issue and the Trustee shall authenticate and
mail to each such Holder a new Note equal in principal amount to the
unpurchased portion of the tendered Note.
(f) The Company will (i) announce the results of the Offer to Holders
on or as soon as practicable after the Purchase Date, and (ii) comply
with Rule 14e-1 under the Securities Exchange Act of 1934, as amended,
and any other securities laws and regulations to the extent applicable
to any Offer.
7. NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed or
purchased in part, but only in multiples of $1,000 principal amount unless all
Notes held by a Holder are to be redeemed or purchased. On or after any date on
which Notes are redeemed or purchased, interest ceases to accrete or accrue, as
the case may be, on the Notes or portions thereof called for redemption or
accepted for purchase on such date.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form, without coupons, in denominations of $1,000 principal amount of
8
maturity and integral multiples thereof. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. Holders seeking to
transfer or exchange their Notes may be required, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not exchange
or register the transfer of any Note or portion of a Note selected for
redemption or tendered pursuant to an Offer. Neither the Trustee or the
Registrar shall be required to issue, register the transfer of or exchange any
Note (i) to register the transfer of or exchange any Note selected for
redemption, (ii) to register the transfer of or exchange any Note for a period
of 15 days before the mailing of a notice of redemption ending on the date of
such mailing, (iii) to register the transfer or exchange of a Note between a
record date and the next succeeding interest payment date.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as the owner of the Note for all purposes.
10. AMENDMENTS AND WAIVERS. (a) Subject to certain exceptions, the
Indenture and the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes), and any existing Default or Event of Default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes); provided that: (i) no such
modification or amendment may, without the consent of the holders of 75% in
aggregate principal amount of such series of Notes then outstanding, amend or
modify the obligations of the Company under Section 4.15 of the Indenture (or
the definitions related thereto) that could adversely affect the rights of any
holder of the Notes; and (ii) without the consent of each holder affected, the
Company and the Trustee may not: (w) extend the maturity of any Note; (x) affect
the terms of any scheduled payment of interest on or principal of the Notes
(including without limitation any redemption provisions); (y) take any action
that would subordinate the Notes or the Note Guarantees to any other
Indebtedness of the Company or any of Guarantors, respectively (except as
provided in Article 10), or otherwise affect the ranking of the Notes or the
Note Guarantees; or (z) reduce the percentage of holders necessary to consent to
an amendment, supplement or waiver to this Indenture.
(b) Notwithstanding section 10(a) above, the Company, the Guarantors
and the Trustee may amend or supplement the Indenture or
9
the Notes, without the consent of any Holder, to: cure any ambiguity,
defect or inconsistency; provide for uncertificated Notes in addition
to or in place of certificated Notes; provide for the assumption of the
obligations to the Holders of the Company, or the Guarantors, as the
case may be, in the event of any merger or reorganization involving the
Company, or a Guarantor, as the case may be, that is permitted under
Article 5 of the Indenture; make any change that would provide any
additional rights or benefits to Holders or does not adversely affect
the legal rights under the Indenture of any Holder; comply with the
requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
11. DEFAULTS AND REMEDIES. Events of Default include: (i) failure by
the Company to pay interest on any of the Notes when it becomes due and payable
and the continuance of any such failure for 30 days; (ii) failure by the Company
to pay the principal or premium, if any, on any of the Notes when it becomes due
and payable, whether at stated maturity, upon redemption, upon acceleration or
otherwise; (iii) failure by the Company to comply with any of its agreements or
covenants described under Article 5 of the Indenture, or in respect of its
obligations to make a Change of Control Offer or a Net Proceeds Offer described
in Section 4.15 and 4.16 of the Indenture, respectively; (iv) failure by the
Company to comply with any other covenant in the Indenture and continuance of
such failure for 60 days after notice of such failure has been given to the
Company by the Trustee or by the holders of at least 25% of the aggregate
principal amount of the Notes then outstanding; (v) failure by either the
Company or any of its Restricted Subsidiaries to make any payment when due after
the expiration of any applicable grace period, in respect of any Indebtedness of
the Company or any of such Restricted Subsidiaries, or the acceleration of the
maturity of such Indebtedness by the holders thereof because of a default, with
an aggregate outstanding principal amount for all such Indebtedness under this
clause (v) of $10.0 million or more (but excluding in any event any such
Indebtedness that is paid when so due after expiration of any applicable grace
period, or upon acceleration of the maturity thereof, pursuant to any letter of
credit); (vi) one or more final, non-appealable judgments or orders that exceed
$10.0 million in the aggregate for the payment of money have been entered by a
court or courts of competent jurisdiction against the Company or any Subsidiary
of the Company and such judgment or judgments have not been satisfied, stayed,
annulled or rescinded within 60 days of being entered; (vii) certain events of
bankruptcy, insolvency or reorganization involving the Parent, the Company or
any Significant Subsidiary; and (viii) except as permitted by the Indenture, any
Note Guarantee ceases to be in full force and effect or any Guarantor repudiates
its obligations under any Note Guarantee.
10
If an Event of Default (other than an Event of Default specified in
clause (vii) above with respect to the Company), shall have occurred and be
continuing under the Indenture, the Trustee, by written notice to the Company,
or the holders of at least 25% in aggregate principal amount of the Notes then
outstanding by written notice to the Company and the Trustee may declare all
amounts owing under the Notes to be due and payable immediately. Upon such
declaration of acceleration, the aggregate principal of, premium, if any, and
interest on the outstanding Notes shall immediately become due and payable. If
an Event of Default results from bankruptcy, insolvency or reorganization with
respect to the Company, all outstanding Notes shall become due and payable
without any further action or notice. In certain cases, the holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
an existing Default or Event of Default and its consequences, except a default
in the payment of principal of, premium, if any, and interest on the Notes.
In the case of an Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes under the provisions
of Article 3 of the Indenture and under the Notes, an equivalent premium shall
also become and be immediately due and payable, to the extent permitted by law,
upon the acceleration of the Notes. If an Event of Default occurs prior to March
1, 2003 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to March 1, 2003, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable, to the extent permitted by law, in an amount equal to 10.0%.
The holders may not enforce the provisions of the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
holders of a majority in principal amount of the Notes then outstanding may
direct the Trustee in its exercise of any trust or power; provided however, that
such direction does not conflict with the terms of the Indenture. The Trustee
may withhold from the holders notice of any continuing Default or Event of
Default (except any Default or Event of Default in payment of principal of,
premium, if any, or interest on the Notes) if the Trustee determines that
withholding such notice is in the holders' interest.
12. GUARANTEE. Each Guarantor unconditionally, jointly and severally,
guarantees (each a "NOTE GUARANTEE") to each Holder of a Note authenticated and
delivered by the Trustee that: (i) the principal of, premium, interest
(including Special Interest, if any) on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise, and
11
interest on the overdue principal of and interest and (including, Special
Interest, if any), and premium, if any, on the Notes, if any, to the extent
lawful, and all other Obligations of the Company to the Holders or the Trustee
under this Indenture and the Notes will be promptly paid in full, all in
accordance with the terms of this Indenture and the Notes; and; (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
Obligations, that the Notes will be promptly paid in full when due in accordance
with the terms of such extension or renewal, whether at stated maturity, by
acceleration or otherwise; provided that notwithstanding anything to the
contrary herein or in Article 11 of the Indenture, the aggregate amount of the
Obligations guaranteed under the Indenture by any Guarantor shall be limited in
amount to the lesser of (x) the maximum amount that would not render such
Guarantor's obligations subject to avoidance under applicable fraudulent
conveyance provisions of the United States Bankruptcy Code or any comparable
provision of any applicable state law and (y) the maximum amount that would not
render the Note Guarantee of such Guarantor an improper corporate distribution
by such Guarantor under applicable state law.
13. ADDITIONAL NOTE GUARANTEES. If the Company or any of its
Subsidiaries shall acquire or create another Subsidiary (other than (x) any
Foreign Subsidiary or (y) a Subsidiary that has been designated as an
Unrestricted Subsidiary or (z) an Immaterial Subsidiary), then within 10 days
after acquiring or creating such Subsidiary, the Company will cause each such
Subsidiary to execute and deliver to the Trustee a counterpart of this Indenture
as a Subsidiary Guarantor.
14. SUBORDINATION. (a) All Obligations owed under and in respect of
the Notes are subordinated in right of payment, to the extent and in the manner
provided in Article 10 of the Indenture, to the prior payment in full in cash of
all Obligations owed under and in respect of all Senior Indebtedness of the
Company and the Guarantors, and the subordination of the Notes is for the
benefit of all holders of all Senior Indebtedness, whether outstanding on the
Closing Date or Incurred thereafter. The Company agrees, and each Holder by
accepting a Note agrees, to the subordination.
(b) Each Guarantor's Obligations under its Notes Guarantee shall be
junior and subordinated in right of payment to any Senior Indebtedness
of the Guarantor in the manner set forth in more detail in Section
11.03 of the Indenture.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may
12
otherwise deal with the Company or any of its Affiliates with the same rights it
would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or direct or indirect stockholder of the Company or any Guarantor
(other than the Company and any Subsidiary Guarantor), as such, shall have any
liability for any obligation of the Company or such Subsidiary Guarantor under
the Indenture or the Notes or for any claim based on, in respect of, or by
reason of, any such obligation or the creation of any such obligation. Each
Holder by accepting a Note waives and releases such Persons from all such
liability, and such waiver and release is part of the consideration for the
issuance of the Notes.
17. MERGERS AND CERTAIN OTHER TRANSACTIONS. The Company will not, in a
single transaction or a series of related transactions, (i) consolidate or merge
with or into (other than a merger with a Wholly-Owned Restricted Subsidiary
solely for the purpose of changing the Company's jurisdiction of incorporation
to another State of the United States), or sell, lease, transfer, convey or
otherwise dispose of or assign all or substantially all of the assets of the
Company or the Company and its Subsidiaries (taken as a whole), or assign any of
its obligations under the Notes and the Indenture, to any Person or (ii) adopt a
Plan of Liquidation unless, in either case: (a) the Person formed by or
surviving such consolidation or merger (if other than the Company) or to which
such sale, lease, conveyance or other disposition or assignment shall be made
(or, in the case of a Plan of Liquidation, any Person to which assets are
transferred) (collectively, the "SUCCESSOR"), is a corporation organized and
existing under the laws of any State of the United States of America or the
District of Columbia, and the Successor assumes by supplemental indenture in a
form satisfactory to the Trustee all of the obligations of the Company under the
Notes and the Indenture; (b) immediately prior to and immediately after giving
effect to such transaction and the assumption of the obligations as set forth in
clause (a) above and the incurrence of any Indebtedness to be incurred in
connection therewith, no Default or Event of Default shall have occurred and be
continuing; and (c) immediately after and giving effect to such transaction and
the assumption of the obligations set forth in clause (a) above and the
incurrrence of any Indebtedness to be incurred in connection therewith, and the
use of any net proceeds therefrom on a pro forma basis, (1) the Consolidated Net
Worth of the Company or the Successor, as the case may be, would be at least
equal to the Consolidated Net Worth of the Company immediately prior to such
transaction and (2) the Company or the Successor, as the case may be, could meet
the Coverage Ratio Incurrence Condition; and (d) each Subsidiary Guarantor,
unless it is the other party to the transactions described above, shall have by
amendment to its guarantee confirmed that its guarantee of the Notes
13
shall apply to the obligations of the Company or the Successor under the Notes
and the Indenture. For purposes of this paragraph, any Indebtedness of the
Successor which was not Indebtedness of the Company immediately prior to the
transaction shall be deemed to have been incurred in connection with such
transaction.
18. GOVERNING LAW. This Note shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
the conflict of laws provisions thereof.
19. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
20. CUSIP/CINS NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP and CINS numbers, as applicable, to be printed on the Notes and has
directed the Trustee to use CUSIP and CINS numbers, as applicable, in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers printed on the Notes.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to: Eagle-Picher Industries,
Inc., 250 East Fifth Street, Cincinnati, Ohio, Attention: Secretary.
14
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Principal Amount of this
Amount of decrease in Amount of increase in Global Note following Signature of authorized
Principal Amount of this Principal Amount of this such decrease (or officer of Trustee or
Date of Exchange Global Note Global Note increase) Notes Custodian
- ------------------- ------------------------- ------------------------ ---------------------------- -----------------------
15
TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.: ______________________________________
Please print or typewrite name and address including zip code of assignee:
- ------------------------------------------------------------
- ------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- ---------------------------
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
the end of the period referred to in Rule 144(k) under the Securities Act, the
undersigned confirms, without utilizing any general solicitation or general
advertising, that:
[CHECK ONE]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
OR
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Registrar shall not be
obligated to register this Note in the name of any Person other than the Holder
hereof unless and until the conditions to any such transfer or registration set
forth herein and in Section 2.08 of the Indenture shall have been satisfied.
Date: _______________ Signature: ________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
16
TO BE COMPLETED BY PURCHASER IF (a), ABOVE, IS CHECKED:
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ___________ Signature: _________________________________
NOTICE: To be executed by an executive
officer of the transferee
Signature Guarantee: _______________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), in
accordance with the Securities Exchange Act of 1934, as amended.)
17
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to
Section 4.15 of the Indenture, check the box: [ ]
If you elect to have this Note purchased by the Company pursuant to
Section 4.16 of the Indenture, check the box: [ ]
If you elect to have only part of the principal amount of this Note
purchased by the Company pursuant to Section 4.15 or 4.16 of the Indenture,
state the portion of such amount (multiples of $1,000 principal amount only):
$_________________________.
Dated: Your signature:
- ---------------------- -----------------------------------
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:__________________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), in
accordance with the Securities Exchange Act of 1934, as amended.)
18