EXHIBIT 4.1
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PLY GEM INDUSTRIES, INC.
as Issuer,
the GUARANTORS named herein,
as Guarantors,
and
U.S. Bank National Association,
as Trustee
________________________
INDENTURE
________________________
Dated as of February 12, 2004
________________________
9% Senior Subordinated Notes due 2012
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CROSS-REFERENCE TABLE
TRUST INDENTURE ACT INDENTURE
SECTION SECTION
------- -------
310 (a)(1).......................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.08; 7.10
(b)............................................. 7.08; 7.10; 12.02
(c)............................................. N.A.
311 (a)............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312 (a)............................................. 2.05
(b)............................................. 12.03
(c)............................................. 12.03
313 (a)............................................. 7.06
(b)(1).......................................... 7.06
(b)(2).......................................... 7.06
(c)............................................. 7.06; 12.02
(d)............................................. 7.06
314 (a)............................................. 4.06; 4.18; 12.02
(b)............................................. N.A.
(c)(1).......................................... 7.02; 12.04; 12.05
(c)(2).......................................... 7.02; 12.04; 12.05
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 12.05
(f)............................................. N.A.
315 (a)............................................. 7.01(b); 7.02(a)
(b)............................................. 7.05; 12.02
(c)............................................. 7.01
(d)............................................. 6.05; 7.01(c)
(e)............................................. 6.11
316 (a)(last sentence).............................. 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... 9.02
(b)............................................. 6.07
(c)............................................. 9.05
317 (a)(1).......................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318 (a)............................................. 12.01
(c)............................................. 12.01
________________________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..................................................1
SECTION 1.02. Other Definitions...........................................33
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...........34
SECTION 1.04. Rules of Construction.......................................34
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.............................................35
SECTION 2.02. Execution, Authentication and Denomination; Additional
Notes; Exchange Notes...................................36
SECTION 2.03. Registrar and Paying Agent..................................37
SECTION 2.04. Paying Agent To Hold Assets in Trust........................38
SECTION 2.05. Holder Lists................................................38
SECTION 2.06. Transfer and Exchange.......................................38
SECTION 2.07. Replacement Notes...........................................39
SECTION 2.08. Outstanding Notes...........................................39
SECTION 2.09. Treasury Notes..............................................40
SECTION 2.10. Temporary Notes.............................................40
SECTION 2.11. Cancellation................................................40
SECTION 2.12. Defaulted Interest..........................................40
SECTION 2.13. CUSIP and ISIN Numbers......................................41
SECTION 2.14. Deposit of Moneys...........................................41
SECTION 2.15. Book-Entry Provisions for Global Notes......................41
SECTION 2.16. Special Transfer and Exchange Provisions....................42
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee..........................................46
SECTION 3.02. Selection of Notes To Be Redeemed...........................46
SECTION 3.03. Notice of Redemption........................................47
SECTION 3.04. Effect of Notice of Redemption..............................48
SECTION 3.05. Deposit of Redemption Price.................................48
SECTION 3.06. Notes Redeemed in Part......................................48
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes............................................49
SECTION 4.02. Maintenance of Office or Agency.............................49
SECTION 4.03. Corporate Existence.........................................49
SECTION 4.04. Payment of Taxes............................................50
SECTION 4.05. Maintenance of Properties and Insurance.....................50
SECTION 4.06. Compliance Certificate; Notice of Default...................50
SECTION 4.07. Intentionally Omitted.......................................51
SECTION 4.08. Waiver of Stay, Extension or Usury Laws.....................51
SECTION 4.09. Change of Control...........................................51
SECTION 4.10. Limitations on Additional Indebtedness......................53
SECTION 4.11. Limitations on Restricted Payments..........................55
SECTION 4.12. Limitations on Liens........................................58
SECTION 4.13. Limitations on Asset Sales..................................58
SECTION 4.14. Limitations on Transactions with Affiliates.................63
SECTION 4.15. Limitations on Dividend and Other Restrictions Affecting
Restricted Subsidiaries.................................65
SECTION 4.16. Additional Note Guarantees..................................67
SECTION 4.17. Limitations on Layering Indebtedness........................67
SECTION 4.18. Reports to Holders..........................................67
SECTION 4.19. Limitations on Designation of Unrestricted Subsidiaries.....68
SECTION 4.20. Limitation on the Issuance or Sale of Equity Interests
of Restricted Subsidiaries..............................69
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations, Etc................................70
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default...........................................72
SECTION 6.02. Acceleration................................................74
SECTION 6.03. Other Remedies..............................................75
SECTION 6.04. Waiver of Past Defaults.....................................75
SECTION 6.05. Control by Majority.........................................75
SECTION 6.06. Limitation on Suits.........................................76
SECTION 6.07. Rights of Holders To Receive Payment........................76
SECTION 6.08. Collection Suit by Trustee..................................76
SECTION 6.09. Trustee May File Proofs of Claim............................76
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SECTION 6.10. Priorities..................................................77
SECTION 6.11. Undertaking for Costs.......................................77
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee...........................................78
SECTION 7.02. Rights of Trustee...........................................79
SECTION 7.03. Individual Rights of Trustee................................80
SECTION 7.04. Trustee's Disclaimer........................................80
SECTION 7.05. Notice of Default...........................................81
SECTION 7.06. Reports by Trustee to Holders...............................81
SECTION 7.07. Compensation and Indemnity..................................81
SECTION 7.08. Replacement of Trustee......................................82
SECTION 7.09. Successor Trustee by Merger, Etc............................83
SECTION 7.10. Eligibility; Disqualification...............................83
SECTION 7.11. Preferential Collection of Claims Against the Issuer........84
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Issuer's Obligations.....................84
SECTION 8.02. Legal Defeasance and Covenant Defeasance....................85
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.......86
SECTION 8.04. Application of Trust Money..................................87
SECTION 8.05. Repayment to the Issuer.....................................88
SECTION 8.06. Reinstatement...............................................88
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders..................................88
SECTION 9.02. With Consent of Holders.....................................89
SECTION 9.03. Effect on Senior Debt.......................................90
SECTION 9.04. Compliance with the Trust Indenture Act.....................91
SECTION 9.05. Revocation and Effect of Consents...........................91
SECTION 9.06. Notation on or Exchange of Notes............................91
SECTION 9.07. Trustee To Sign Amendments, Etc.............................92
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ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinated to Senior Debt...........................92
SECTION 10.02. Suspension of Payment When Senior Debt Is in Default........92
SECTION 10.03. Notes Subordinated to Prior Payment of All Senior Debt
on Dissolution, Liquidation or Reorganization of
the Issuer..............................................94
SECTION 10.04. Payments May Be Made on Notes...............................95
SECTION 10.05. Holders To Be Subrogated to Rights of Holders of
Senior Debt.............................................96
SECTION 10.06. Obligations of the Issuer Unconditional.....................96
SECTION 10.07. Notice to Trustee...........................................96
SECTION 10.08. Reliance on Judicial Order or Certificate of
Liquidating Agent.......................................97
SECTION 10.09. Trustee's Relation to Senior Debt...........................97
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions
of the Issuer or Holders of Senior Debt.................97
SECTION 10.11. Holders Authorize Trustee To Effectuate Subordination
of Notes................................................98
SECTION 10.12. This Article Ten Not To Prevent Events of Default...........98
SECTION 10.13. Trustee's Compensation Not Prejudiced.......................99
ARTICLE ELEVEN
NOTE GUARANTEE
SECTION 11.01. Unconditional Guarantee.....................................99
SECTION 11.02. Subordination of Note Guarantee............................100
SECTION 11.03. Limitation on Guarantor Liability..........................100
SECTION 11.04. Execution and Delivery of Note Guarantee...................101
SECTION 11.05. Release of a Subsidiary Guarantor..........................101
SECTION 11.06. Waiver of Subrogation......................................102
SECTION 11.07. Immediate Payment..........................................102
SECTION 11.08. No Set-Off.................................................103
SECTION 11.09. Guarantee Obligations Absolute.............................103
SECTION 11.10. Note Guarantee Obligations Continuing......................103
SECTION 11.11. Note Guarantee Obligations Not Reduced.....................103
SECTION 11.12. Note Guarantee Obligations Reinstated......................103
SECTION 11.13. Note Guarantee Obligations Not Affected....................104
SECTION 11.14. Waiver.....................................................105
SECTION 11.15. No Obligation to Take Action Against the Issuers...........105
SECTION 11.16. Dealing with the Issuers and Others........................105
SECTION 11.17. Default and Enforcement....................................106
SECTION 11.18. Acknowledgment.............................................106
SECTION 11.19. Costs and Expenses.........................................106
SECTION 11.20. No Merger or Waiver; Cumulative Remedies...................106
SECTION 11.21. Survival of Note Guarantee Obligations.....................106
SECTION 11.22. Note Guarantee in Addition to Other Guarantee Obligations..107
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SECTION 11.23. Severability...............................................107
SECTION 11.24. Successors and Assigns.....................................107
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls...............................107
SECTION 12.02. Notices....................................................107
SECTION 12.03. Communications by Holders with Other Holders...............108
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.........109
SECTION 12.05. Statements Required in Certificate or Opinion..............109
SECTION 12.06. Rules by Paying Agent or Registrar.........................109
SECTION 12.07. Legal Holidays.............................................109
SECTION 12.08. Governing Law..............................................110
SECTION 12.09. No Adverse Interpretation of Other Agreements..............110
SECTION 12.10. No Recourse Against Others.................................110
SECTION 12.11. Successors.................................................110
SECTION 12.12. Duplicate Originals........................................110
SECTION 12.13. Severability...............................................110
Signatures...................................................................S-1
Exhibit A - Form of Note
Exhibit B - Form of Legends
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with Transfers
Pursuant to Regulation S
Exhibit E - Form of Certificate To Be Delivered in Connection with Transfers
of Temporary Regulation S Global Note
Exhibit F - Form of Notation of Subsidiary Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of this Indenture.
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INDENTURE dated as of February 12, 2004 among Ply Gem Industries, Inc.,
a Delaware corporation (the "ISSUER"), and each of the Guarantors named herein,
as Guarantors, and U.S. Bank National Association, a national banking
association, as Trustee (the "TRUSTEE").
The Issuer has duly authorized the creation of an issue of 9% Senior
Subordinated Notes due 2012 and, to provide therefor, the Issuer and the
Guarantors have duly authorized the execution and delivery of this Indenture.
All things necessary to make the Notes, when duly issued and executed by the
Issuer and authenticated and delivered hereunder, the valid and binding
obligations of the Issuer and to make this Indenture a valid and binding
agreement of the Issuer and the Guarantors has been done.
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, the parties hereto covenant and agree, for the equal and
proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
Set forth below are certain defined terms used in this Indenture.
"144A GLOBAL NOTE" has the meaning given to such term in Section 2.01.
"ACQUIRED INDEBTEDNESS" means (1) with respect to any Person that
becomes a Restricted Subsidiary after the Issue Date, 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 (2) with
respect to the Issuer or any Restricted Subsidiary, any Indebtedness of a Person
(other than the Issuer or a Restricted Subsidiary) existing at the time such
Person is merged with or into the Issuer or a Restricted Subsidiary, or
Indebtedness expressly assumed by the Issuer or any Restricted Subsidiary 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 on the Issue Date of all of the
outstanding Equity Interests of the Issuer by Parent pursuant to the Stock
Purchase Agreement, dated as of December 19, 2003, as amended on January 23,
2004, and as further amended on February 12, 2004, by and among Holdings,
Nortek, Inc. and WDS LLC.
"ADDITIONAL INTEREST" has the meaning set forth in the Registration
Rights Agreement.
"ADVISORY AGREEMENT" means the advisory agreement to be entered into
between the Issuer and Sponsor or an Affiliate or Related Party thereof in
connection with the Acquisition.
"AFFILIATE" of any Person means any other Person which directly or
indirectly controls or is controlled by, or is under direct or indirect common
control with, the referent Person. For purposes of Section 4.14 only, Affiliates
shall be deemed to include, with respect to any Person, any other Person (1)
which beneficially owns 10% or more of any class of the Voting Stock of the
referent Person or (2) of which 10% or more of the Voting Stock is beneficially
owned by the referenced Person. For purposes of this definition and the
definition of "Permitted Holder", "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 or Paying Agent.
"AMEND" means to amend, supplement, restate, amend and restate or
otherwise modify; and "AMENDMENT" shall have a correlative meaning.
"APPLICABLE PREMIUM" means, with respect to a Note at any Redemption
Date, the greater of: (i) 1.0% of the principal amount of such Note; and (ii)
the excess of: (a) the present value at such Redemption Date of (1) the
Redemption Price of such Note on the First Call Date (such Redemption Price
being that described in Section 5 of the Notes) plus (2) all required remaining
scheduled interest payments due on such Note through the First Call Date, other
than accrued interest to such Redemption Date, computed using a discount rate
equal to the Treasury Rate plus 75 basis points per annum discounted on a
semi-annual bond equivalent basis, over (b) the principal amount of such Note on
such Redemption Date.
Calculation of the Applicable Premium will be made by the Issuer or on
behalf of the Issuer by such Person as the Issuer shall designate; PROVIDED,
HOWEVER, that such calculation shall not be a duty or obligation of the Trustee.
"ASSET" means any asset or property.
"ASSET ACQUISITION" means
(1) an Investment by the Issuer or any Restricted Subsidiary of
the Issuer in any other Person if, as a result of such Investment, such
Person shall become a Restricted Subsidiary of the Issuer, or shall be
merged with or into the Issuer or any Restricted Subsidiary of the Issuer,
or
(2) the acquisition by the Issuer or any Restricted Subsidiary of
the Issuer of all or substantially all of the assets of any other Person or
any division or line of business of any other Person.
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"ASSET SALE" means any sale, issuance, conveyance, transfer, lease,
assignment or other disposition by the Issuer or any Restricted Subsidiary to
any Person other than the Issuer or any Restricted Subsidiary (including by
means of a sale and leaseback transaction or a merger or consolidation)
(collectively, for purposes of this definition, a "TRANSFER"), in one
transaction or a series of related transactions, of any assets of the Issuer or
any of its Restricted Subsidiaries other than in the ordinary course of
business. For purposes of this definition, the term "Asset Sale" shall not
include:
(1) transfers of cash or Cash Equivalents;
(2) transfers of assets (including Equity Interests) that are
governed by, and made in accordance with, Section 5.01;
(3) Permitted Investments and Restricted Payments permitted under
Section 4.11;
(4) the creation or realization of any Lien permitted under this
Indenture;
(5) transfers of damaged, worn-out or obsolete equipment or assets
that, in the Issuer's reasonable judgment, are no longer used or useful in
the business of the Issuer or its Restricted Subsidiaries;
(6) sales or grants of licenses or sublicenses to use the patents,
trade secrets, know-how and other intellectual property, and licenses,
leases or subleases of other assets, of the Issuer or any Restricted
Subsidiary to the extent not materially interfering with the business of
Issuer and the Restricted Subsidiaries; and
(7) any transfer or series of related transfers that, but for this
clause, would be Asset Sales, if after giving effect to such transfers, the
aggregate Fair Market Value of the assets transferred in such transaction
or any such series of related transactions does not exceed $2.5 million.
"BANK FINANCING" means the Issuer's entry into the Credit Agreement on
or about the Issue Date and its initial borrowings thereunder in connection with
the funding of the Acquisition.
"BANKRUPTCY LAW" means Title 11 of the United States Code, as amended,
or any similar federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, (i) in the case
of any corporation, the board of directors of such Person, (ii) in the case of
any limited liability company, the board of managers of such Person, (iii) in
the case of any partnership, the Board of Directors of the general partner of
such Person and (iv) in any other case, the functional equivalent of the
foregoing or, in each case, other than for purposes of the definition of "Change
of Control," any duly authorized committee of such body.
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"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
on which banking institutions in New York are authorized or required by law to
close.
"CAPITALIZED LEASE" means a lease required to be capitalized for
financial reporting purposes in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under a Capitalized Lease, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"CASH EQUIVALENTS" means:
(1) marketable obligations 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), maturing within 360 days of the
date of acquisition thereof;
(2) demand and time deposits and certificates of deposit or
acceptances, maturing within 360 days of the date of acquisition thereof,
of any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than
$500 million and is assigned at least a "B" rating by Thomson Financial
BankWatch;
(3) commercial paper maturing no more than 180 days from the date
of creation thereof issued by a corporation that is not the Issuer or an
Affiliate of the Issuer, and is organized under the laws of any State of
the United States of America or the District of Columbia and rated at least
A-1 by S&P or at least P-1 by Moody's;
(4) repurchase obligations with a term of not more than ten days
for underlying securities of the types described in clause (1) above
entered into with any commercial bank meeting the specifications of clause
(2) above; and
(5) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the types
described in clauses (1) through (4) above.
"CHANGE OF CONTROL" means the occurrence of any of the following
events:
(1) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act, except that in no event shall the
parties to the Stockholders' Agreement be deemed a "group" solely by virtue
of being parties to the Stockholders' Agreement), other than one or more
Permitted Holders, is or becomes the beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that for purposes of this
clause that person or group shall be deemed to have "beneficial ownership"
of all securities that any such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of Voting Stock representing 50% or more of
the voting power of the total outstanding Vot-
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ing Stock of the Issuer; PROVIDED, HOWEVER, that such event shall not be
deemed to be a Change of Control so long as one or more of the Permitted
Holders have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of the
Issuer;
(2) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election to such Board of Directors or whose
nomination for election by the stockholders of the Issuer was approved by a
vote of the majority of the directors of the Issuer then still in office
who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors of the Issuer;
(3) (a) all or substantially all of the assets of the Issuer and
the Restricted Subsidiaries are sold or otherwise transferred to any Person
other than a Wholly-Owned Restricted Subsidiary or one or more Permitted
Holders or (b) the Issuer consolidates or merges with or into another
Person or any Person consolidates or merges with or into the Issuer, in
either case under this clause (3), in one transaction or a series of
related transactions in which immediately after the consummation thereof
Persons beneficially owning (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, Voting Stock representing in the
aggregate a majority of the total voting power of the Voting Stock of the
Issuer immediately prior to such consummation do not beneficially own (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, Voting Stock representing a majority of the total voting power
of the Voting Stock of the Issuer or the surviving or transferee Person;
PROVIDED that it shall not constitute a Change of Control under this clause
(3)(b) if, after giving effect to such transaction, one or more of the
Permitted Holders beneficially own (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, Voting Stock representing
(i) 35% or more of the total voting power of the Voting Stock of the Issuer
or the surviving or transferee Person in such transaction immediately after
such transaction and (ii) a greater percentage of the total voting power of
the Voting Stock of the Issuer than any other "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act); or
(4) the Issuer shall adopt a plan of liquidation or dissolution or
any such plan shall be approved by the stockholders of the Issuer.
For purposes of this definition, (i) a Person shall not be deemed to have
beneficial ownership of securities subject to a stock purchase agreement, merger
agreement or similar agreement until the consummation of the transactions
contemplated by such agreement and (ii) any holding company whose only
significant asset is Equity Interests of Parent or the Issuer shall not itself
be considered a "person" or "group" for purposes of clause (1) or (3) above.
"CONSOLIDATED AMORTIZATION EXPENSE" for any period means the
amortization expense of the Issuer and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
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"CONSOLIDATED CASH FLOW" for any period means, without duplication, the
sum of the amounts for such period of
(1) Consolidated Net Income, PLUS
(2) in each case only to the extent (and in the same proportion)
deducted in determining Consolidated Net Income and with respect to the
portion of Consolidated Net Income attributable to any Restricted
Subsidiary (other than any Foreign Subsidiary) only if a corresponding
amount would be permitted at the date of determination to be distributed to
the Issuer by such Restricted Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements
(other than any municipal loan or related agreements entered into in
connection with the incurrence of industrial revenue bonds), instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders,
(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,
(e) Restructuring Expenses,
(f) payments pursuant to the Advisory Agreement, and
(g) all other non-cash items reducing the Consolidated
Net Income (excluding any 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, MINUS
(3) 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, PLUS or MINUS
(4) without duplication of amounts included as Restructuring
Expenses, with respect to any part of a Four-Quarter Period covered by the
section "Summary historical and pro forma financial information" in the
Offering Memorandum, the pro forma adjustments to net earnings and the
adjustments to "EBITDA" to derive "Adjusted EBITDA" set forth in such
section.
"CONSOLIDATED DEPRECIATION EXPENSE" for any period means the
depreciation expense of the Issuer and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
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"CONSOLIDATED INCOME TAX EXPENSE" for any period means the provision
for taxes of the Issuer and the Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST COVERAGE RATIO" means the ratio of Consolidated
Cash Flow during the most recent four consecutive full fiscal quarters for which
financial statements are available (the "FOUR-QUARTER PERIOD") ending on or
prior to the date of determination (the "TRANSACTION DATE") to Consolidated
Interest Expense for the Four-Quarter Period. For purposes of this definition,
Consolidated Cash Flow and Consolidated Interest Expense shall be calculated
after giving effect on a pro forma basis for the period of such calculation to:
(1) the incurrence of any Indebtedness or the issuance of any
Preferred Stock of the Issuer or any Restricted Subsidiary (and the
application of the proceeds thereof) and any repayment of other
Indebtedness or redemption of other Preferred Stock (and the application of
the proceeds therefrom) (other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital
purposes pursuant to any revolving credit arrangement) occurring during the
Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such
incurrence, repayment, issuance or redemption, as the case may be (and the
application of the proceeds thereof), occurred on the first day of the
Four-Quarter Period; and
(2) any Asset Sale or Asset Acquisition (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Issuer or any Restricted Subsidiary
(including any Person who becomes a Restricted Subsidiary as a result of
such Asset Acquisition) incurring Acquired Indebtedness and also including
any Consolidated Cash Flow (including any Pro Forma Cost Savings)
associated with any such Asset Acquisition) occurring during the
Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such
Asset Sale or Asset Acquisition (including the incurrence of, or assumption
or liability for, any such Indebtedness or Acquired Indebtedness) occurred
on the first day of the Four-Quarter Period.
In calculating Consolidated Interest Expense for purposes of
determining the denominator (but not the numerator) of this Consolidated
Interest Coverage Ratio:
(1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be
so determined thereafter shall be deemed to have accrued at a fixed rate
per annum equal to the rate of interest on this Indebtedness in effect on
the Transaction Date;
(2) if interest on any Indebtedness actually incurred on the
Transaction Date may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rates, then the interest rate in effect on the Transaction
Date will be deemed to have been in effect during the Four-Quarter Period;
and
-7-
(3) notwithstanding clause (1) or (2) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest
is covered by agreements relating to Hedging Obligations, shall be deemed
to accrue at the rate per annum resulting after giving effect to the
operation of these agreements.
"CONSOLIDATED INTEREST EXPENSE" for any period means the sum, without
duplication, of the total interest expense (less interest income) of the Issuer
and the Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP and including without duplication,
(1) imputed interest on Capitalized Lease Obligations,
(2) commissions, discounts and other fees and charges owed with
respect to letters of credit securing financial obligations, bankers'
acceptance financing and receivables financings,
(3) the net costs associated with Hedging Obligations,
(4) the interest portion of any deferred payment obligations,
(5) all other non-cash interest expense,
(6) capitalized interest,
(7) the product of (a) all dividend payments on any series of
Disqualified Equity Interests of the Issuer or any Preferred Stock of any
Restricted Subsidiary (other than any such Disqualified Equity Interests or
any Preferred Stock held by the Issuer or a Wholly-Owned Restricted
Subsidiary or to the extent paid in Qualified Equity Interests), MULTIPLIED
BY (b) a fraction, the numerator of which is one and the denominator of
which is one MINUS the then current combined federal, state and local
statutory tax rate of the Issuer and the Restricted Subsidiaries, expressed
as a decimal,
(8) all interest payable with respect to discontinued operations,
and
(9) all interest on any Indebtedness described in clause (7) or
(8) of the definition of "Indebtedness"; PROVIDED that such interest shall
be included in Consolidated Interest Expense only to the extent that the
amount of the related Indebtedness is reflected on the balance sheet of the
Issuer or any Restricted Subsidiary,
LESS, to the extent included in such total interest expense, (A) the
amortization during such period of capitalized financing costs associated with
the Transactions and (B) the amortization during such period of other
capitalized financing costs; PROVIDED, HOWEVER, that, in the case of clause (B),
the aggregate amount of amortization relating to such capitalized financing
costs deducted in calculating Consolidated Interest Expense shall not exceed 5%
of the aggregate amount of the financing giving rise thereto.
-8-
Consolidated Interest Expense shall be calculated excluding unrealized
gains and losses with respect to Hedging Obligations.
"CONSOLIDATED NET INCOME" for any period means the net income (or loss)
of the Issuer and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded from such net income (or loss) (to the extent otherwise included
therein), without duplication:
(1) the net income (or loss) of any Person (other than a
Restricted Subsidiary) in which any Person other than the Issuer and the
Restricted Subsidiaries has an ownership interest, except to the extent
that cash in an amount equal to any such income has actually been received
by the Issuer or any of its Wholly-Owned Restricted Subsidiaries during
such period;
(2) except to the extent includible in the consolidated net income
of the Issuer pursuant to the foregoing clause (1), 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
Issuer or any Restricted Subsidiary or (b) the assets of such Person are
acquired by the Issuer or any Restricted Subsidiary;
(3) the net income of any Restricted Subsidiary (other than any
Foreign Subsidiary) during such period to the extent that the declaration
or payment of dividends or similar distributions by such Restricted
Subsidiary of that income is not permitted by operation of the terms of its
charter or any agreement (other than any municipal loan or related
agreements entered into in connection with the incurrence of industrial
revenue bonds), instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary during such period,
except that the Issuer's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining Consolidated
Net Income;
(4) for the purposes of calculating the Restricted Payments Basket
only, in the case of a successor to the Issuer by consolidation, merger or
transfer of its assets, any income (or loss) of the successor prior to such
merger, consolidation or transfer of assets;
(5) any gain (or loss), together with any related provisions for
taxes on any such gain (or the tax effect of any such loss), realized
during such period by the Issuer or any Restricted Subsidiary upon (a) the
acquisition of any securities, or the extinguishment of any Indebtedness,
of the Issuer or any Restricted Subsidiary or (b) any Asset Sale by the
Issuer or any Restricted Subsidiary;
(6) gains and losses due solely to fluctuations in currency values
and the related tax effects according to GAAP;
(7) unrealized gains and losses with respect to Hedging
Obligations;
(8) the cumulative effect of any change in accounting principles;
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(9) any amortization or write-offs of debt issuance or deferred
financing costs, premiums and prepayment penalties, and other costs and
expenses, in each case, paid during such period to the extent attributable
to the Transactions and the Exchange Offer pursuant to the Registration
Rights Agreement;
(10) gains and losses realized upon the refinancing of any
Indebtedness of the Issuer or any Restricted Subsidiary;
(11) any extraordinary or nonrecurring gain (or extraordinary or
nonrecurring loss), together with any related provision for taxes on any
such extraordinary or nonrecurring gain (or the tax effect of any such
extraordinary or nonrecurring loss), realized by the Issuer or any
Restricted Subsidiary during such period;
(12) non-cash compensation charges or other non-cash expenses or
charges arising from the grant of or issuance or repricing of Equity
Interests or other equity-based awards or any amendment or substitution of
any such Equity Interests or other equity-based awards;
(13) any non-cash goodwill or non-cash asset impairment charges
subsequent to the Issue Date;
(14) any expenses or reserves for liabilities to the extent that
the Issuer or any Restricted Subsidiary is entitled to indemnification
therefor under binding agreements; PROVIDED that any liabilities for which
the Issuer or such Restricted Subsidiary is not actually indemnified shall
reduce Consolidated Net Income in the period in which it is determined that
the Issuer or such Restricted Subsidiary will not be indemnified; and
(15) so long as the Issuer and the Restricted Subsidiaries file a
consolidated tax return, or are part of a consolidated group for tax
purposes, with Parent, Holdings or any other holding company, the excess of
(a) the Consolidated Income Tax Expense for such period over (b) all tax
payments payable for such period by the Issuer and the Restricted
Subsidiaries to Parent, Holdings or such other holding company under a tax
sharing agreement or arrangement.
In addition:
(a) Consolidated Net Income shall be reduced by the amount of any
payments to or on behalf of Parent made pursuant to Section 4.14(b)(4); and
(b) any return of capital with respect to an Investment that
increased the Restricted Payments Basket pursuant to Section 4.11(a)(3)(d)
or decreased the amount of Investments outstanding pursuant to clause (17),
(18) or (19) of the definition of "Permitted Investments" shall be excluded
from Consolidated Net Income for purposes of calculating the Restricted
Payments Basket.
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For purposes of this definition of "Consolidated Net Income,"
"NONRECURRING" means, with respect to any cash gain or loss, any gain or loss as
of any date that is not reasonably likely to recur within the two years
following such date; PROVIDED that if there was a gain or loss similar to such
gain or loss within the two years preceding such date, such gain or loss shall
not be deemed nonrecurring.
"CONSOLIDATED NET TANGIBLE ASSETS" means the aggregate amount of assets
of the Issuer (less applicable reserves and other properly deductible items)
after deducting therefrom (to the extent otherwise included therein) (a) all
current liabilities (other than the obligations under this Indenture or current
maturities of long-term Indebtedness), and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the books and records of the Issuer and the
Restricted Subsidiaries on a consolidated basis and in accordance with GAAP.
"CORPORATE TRUST OFFICE" means the corporate trust office of the
Trustee located at 60 Livingston Avenue, EP-MN-WS3C, St. Paul, Minnesota,
55107-2292, Attention: Corporate Trust Department, or such other office,
designated by the Trustee by written notice to the Issuer, at which at any
particular time its corporate trust business shall be administered.
"CREDIT AGREEMENT" means the Credit Agreement dated on or about the
Issue Date by and among the Issuer, as Borrower, UBS AG, Stamford Branch, as
administrative and collateral agent, UBS Securities LLC and Deutsche Bank
Securities Inc., as joint lead arrangers, CIBC World Markets Corp. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as co-arrangers, Deutsche Bank AG
Cayman Islands Branch, as syndication agent, Canadian Imperial Bank of Commerce
and Merrill Lynch Capital Corporation, as co-documentation agents, the lenders
named therein and the guarantors party thereto, including any notes, guarantees,
collateral and security documents, instruments and agreements executed in
connection therewith (including Hedging Obligations related to the Indebtedness
incurred thereunder), and in each case as amended or refinanced from time to
time.
"CREDIT FACILITIES" means one or more debt facilities (which may be
outstanding at the same time and including, without limitation, the Credit
Agreement) providing for revolving credit loans, term loans, letters of credit,
receivables financing, commercial paper or any other form of senior debt
securities and, in each case, as such agreements may be amended, amended and
restated, supplemented, modified, extended, refinanced, replaced or otherwise
restructured, in whole or in part from time to time (including increasing the
amount of available borrowings thereunder or adding Subsidiaries of the Issuer
as additional borrowers or guarantors thereunder) with respect to all or any
portion of the Indebtedness under such agreement or agreements or any successor
or replacement agreement or agreements and whether by the same or any other
agent, lender or group of lenders.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEFAULT" means (1) any Event of Default or (2) any event, act or
condition that, after notice or the passage of time or both, would be an Event
of Default.
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"DEPOSITORY" means The Depository Trust Company, New York, New York, or
a successor thereto registered under the Exchange Act or other applicable
statute or regulation.
"DESIGNATED SENIOR DEBT" means (1) Senior Debt and Guarantor Senior
Debt under or in respect of the Credit Facilities and (2) any other Indebtedness
constituting Senior Debt or Guarantor Senior Debt which, at the time of
determination, has an aggregate principal amount of at least $25.0 million and
is specifically designated in the instrument evidencing such Senior Debt as
"Designated Senior Debt."
"DISQUALIFIED EQUITY INTERESTS" of any Person means any class of Equity
Interests of such Person that, by its terms, or by the terms of any related
agreement or 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 by such Person, 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
date which is 91 days after the final maturity date of the Notes; PROVIDED,
HOWEVER, that any class of Equity Interests 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 Equity
Interests that are not Disqualified Equity Interests, and that is not
convertible, puttable or exchangeable for Disqualified Equity Interests or
Indebtedness, will not be deemed to be Disqualified Equity Interests so long as
such Person satisfies its obligations with respect thereto solely by the
delivery of Equity Interests that are not Disqualified Equity Interests;
PROVIDED, FURTHER, HOWEVER, that any Equity Interests that would not constitute
Disqualified Equity Interests but for provisions thereof giving holders thereof
(or the holders of any security into or for which such Equity Interests is
convertible, exchangeable or exercisable) the right to require the Issuer to
redeem such Equity Interests upon the occurrence of a change in control or an
asset sale occurring prior to the 91st day after the final maturity date of the
Notes shall not constitute Disqualified Equity Interests if the change in
control or asset sale provisions applicable to such Equity Interests are no more
favorable to such holders than the provisions set forth in Section 4.09 and
Section 4.13 respectively, and such Equity Interests provide that the Issuer
will not redeem any such Equity Interests pursuant to such provisions prior to
the Issuer's purchase of the Notes as required pursuant to the provisions set
forth in Section 4.09 and 4.13 respectively.
"EQUITY CONTRIBUTION" means the contribution of approximately $141.0
million (in cash and management equity awards) by Sponsor, its affiliates and
Related Parties, certain other Persons and certain members of the Issuer's
management to Holdings in return for Equity Interests in Holdings, and the
contribution of cash by Holdings to Parent in connection with the funding of the
Acquisition.
"EQUITY INTERESTS" of any Person means (1) any and all shares or other
equity interests (including common stock, preferred stock, limited liability
company interests and partnership interests) in such Person and (2) 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.
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"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER" means an offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Notes bearing the
Private Placement Legend for the Exchange Notes.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning given to such
term in the Registration Rights Agreement.
"FAIR MARKET VALUE" means, with respect to any asset, the price (after
taking into account any liabilities relating to such asset) that would be
negotiated in an arm's-length transaction for cash between a willing seller and
a willing and able buyer, neither of which is under any compulsion to complete
the transaction. Fair Market Value (other than of any asset with a public
trading market) in excess of $5.0 million shall be determined by the Board of
Directors of the Issuer acting reasonably and in good faith and shall be
evidenced by a board resolution delivered to the Trustee. Fair Market Value
(other than of any asset with a public trading market) in excess of $20.0
million shall be determined by an Independent Financial Advisor, which
determination shall be evidenced by an opinion addressed to the Board of
Directors of the Issuer and delivered to the Trustee.
"FIRST CALL DATE" means February 15, 2008.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary of the Issuer
which (i) is not organized under the laws of (x) the United States or any state
thereof or (y) the District of Columbia and (ii) conducts substantially all of
its business operations outside the United States of America.
"FOUR-QUARTER PERIOD" has the meaning given to such term in the
definition of "Consolidated Interest Coverage Ratio."
"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.
"GUARANTEE" means a direct or indirect guarantee by any Person of any
Indebtedness of any other Person and includes any obligation, direct or
indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or
advance or supply funds for the purchase or payment of) Indebtedness of such
other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise); or
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(2) entered into for purposes of assuring in any other manner the obligee of
such Indebtedness of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); "GUARANTEE," when used as a verb, and
"GUARANTEED" have correlative meanings.
"GUARANTOR SENIOR DEBT" means, with respect to any Guarantor, the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on and all Obligations of any Indebtedness
of such Guarantor, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Notes.
Without limiting the generality of the foregoing, "Guarantor Senior
Debt" shall also include the principal of, premium, if any, interest (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on, and all other
amounts owing in respect of:
(1) all monetary obligations of every nature of such Guarantor
under, or with respect to, the Credit Facilities, including, without
limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and
guarantees thereof); and
(2) all Hedging Obligations in respect of the Credit Facilities;
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall not
include:
(1) any Indebtedness of such Guarantor to Parent or any of its
Subsidiaries;
(2) obligations to trade creditors and other amounts incurred (but
not under the Credit Facilities) in connection with obtaining goods,
materials or services;
(3) Indebtedness represented by Disqualified Equity Interests;
(4) any liability for taxes owed or owing by such Guarantor;
(5) that portion of any Indebtedness incurred in violation of
Section 4.10 (but, as to any such obligation, no such violation shall be
deemed to exist for purposes of this clause (5) if the holder(s) of such
obligation or their representative shall have received an officers'
certificate of the Issuer to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date on
which the initial borrowing thereunder is made would not) violate such
provisions of this Indenture);
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(6) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to such Guarantor; and
(7) any Indebtedness which is, by its express terms, subordinated
in right of payment to any other Indebtedness of such Guarantor.
"GUARANTORS" means (1) Parent, (2) each Restricted Subsidiary of the
Issuer on the Issue Date (other than CWD Windows and Doors, Inc., a Canadian
corporation) and (3) each other Person that is required to, or at the election
of the Issuer does, become a Guarantor by the terms of this Indenture after the
Issue Date, in each case, until such Person is released from its Note Guarantee
in accordance with the terms of this Indenture.
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person under swap, cap, collar, forward purchase or similar agreements or
arrangements dealing with interest rates, currency exchange rates or commodity
prices, either generally or under specific contingencies.
"HOLDER" means any registered holder, from time to time, of the Notes.
"HOLDINGS" means Ply Gem Investment Holdings, Inc., a Delaware
corporation, and its successors and assigns.
"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 (1) 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 (2) the accrual of interest, the accretion of
original issue discount or the accretion or accumulation of dividends on any
Equity Interests shall not be deemed to be an incurrence of Indebtedness.
"INDEBTEDNESS" of any Person at any date means, without duplication:
(1) 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);
(2) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) all reimbursement obligations of such Person in respect of
letters of credit, letters of guaranty, bankers' acceptances and similar
credit transactions;
(4) 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;
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(5) the amount of all Disqualified Equity Interests of such Person
calculated in accordance with GAAP (whether classified as debt, equity or
mezzanine);
(6) all Capitalized Lease Obligations of such Person;
(7) all Indebtedness of others secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
(8) all Indebtedness of others guaranteed by such Person to the
extent of such guarantee; PROVIDED that Indebtedness of the Issuer or its
Subsidiaries that is guaranteed by the Issuer or the Issuer's Subsidiaries
shall only be counted once in the calculation of the amount of Indebtedness
of the Issuer and its Subsidiaries on a consolidated basis;
(9) to the extent not otherwise included in this definition,
Hedging Obligations of such Person; and
(10) all obligations of such Person under conditional sale or other
title retention agreements relating to assets purchased by such Person,
except trade payables incurred by such Person in the ordinary course of
business.
The amount of any Indebtedness which is incurred at a discount to the principal
amount at maturity thereof as of any date shall be deemed to have been incurred
at the accreted value thereof as of such date. 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 (7), 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.
Notwithstanding the foregoing, Indebtedness shall not include any
liability for Federal, state, local or other taxes owed or owing to any
governmental entity.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Issuer's Board of Directors, disinterested and
independent with respect to the Issuer and its Affiliates.
"INITIAL GLOBAL NOTES" has the meaning given to such term in Section
2.01.
"INITIAL NOTES" has the meaning given to such term in Section 2.01.
"INITIAL PURCHASERS" means UBS Securities LLC, Deutsche Bank Securities
Inc., CIBC World Markets Corp. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
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"INSTITUTIONAL ACCREDITED INVESTOR" or "IAI" means an "accredited
investor" with the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"INTEREST" means, with respect to the Notes, interest and Additional
Interest, if any, on the Notes.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Notes.
"INVESTMENTS" of any Person means:
(1) all direct or indirect investments by such Person in any other
Person in the form of loans, advances or capital contributions or other
credit extensions constituting Indebtedness of such other Person, and any
guarantee of Indebtedness of any other Person;
(2) all purchases (or other acquisitions for consideration) by
such Person of Indebtedness, Equity Interests or other securities of any
other Person (other than any such purchase that constitutes a Restricted
Payment of the type described in clause (2) of the definition thereof);
(3) all other items that would be classified as investments on a
balance sheet of such Person prepared in accordance with GAAP; and
(4) the Designation of any Subsidiary as an Unrestricted
Subsidiary.
Except as otherwise expressly specified in this definition, the amount of any
Investment (other than an Investment made in cash) shall be the Fair Market
Value thereof on the date such Investment is made. The amount of Investment
pursuant to clause (4) shall be the Designation Amount determined in accordance
with Section 4.19. If the Issuer or any Restricted Subsidiary sells or otherwise
disposes of any Equity Interests of any Restricted Subsidiary, or any Restricted
Subsidiary issues any Equity Interests, in either case, such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted
Subsidiary, the Issuer shall be deemed to have made an Investment on the date of
any such sale or other disposition equal to the Fair Market Value of the Equity
Interests of and all other Investments in such Restricted Subsidiary retained.
Notwithstanding the foregoing, purchases or redemptions of Equity Interests of
the Issuer, Parent or Holdings shall be deemed not to be Investments.
"ISSUE DATE" means the date on which the Notes are originally issued.
"LIEN" means, with respect to any asset, 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, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement.
-17-
"MATURITY DATE" means February 15, 2012.
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
"NET AVAILABLE PROCEEDS" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents, net of
(1) brokerage commissions and other fees and expenses (including
fees, discounts and expenses of legal counsel, accountants, investment
banks, consultants and placement agents) of such Asset Sale;
(2) provisions for taxes payable as a result of such Asset Sale
(after taking into account any available tax credits or deductions and any
tax sharing arrangements);
(3) amounts required to be paid to any Person (other than the
Issuer or any Restricted Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale or having a Lien thereon;
(4) payments of unassumed liabilities (not constituting
Indebtedness) relating to the assets sold at the time of, or within 30 days
after the date of, such Asset Sale; and
(5) appropriate amounts to be provided by the Issuer or any
Restricted Subsidiary, as the case may be, as a reserve required in
accordance with GAAP against any adjustment in the sale price of such asset
or assets or liabilities associated with such Asset Sale and retained by
the Issuer or any Restricted Subsidiary, as the case may be, after such
Asset Sale, including 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.
"NON-U.S. PERSON" has the meaning assigned to such term in Regulation
S.
"NOTE GUARANTEE" means the subordinated guarantee by each Guarantor of
the Issuer's payment obligations under this Indenture and the Notes, executed
pursuant to this Indenture.
"NOTES" means, collectively, the Issuer's 9% Senior Subordinated Notes
due 2012 issued in accordance with Section 2.02 (whether issued on the Issue
Date, issued as Additional Notes, issued as Exchange Notes or Private Exchange
Notes, or otherwise issued after the Issue Date) treated as a single class of
securities under this Indenture, as amended or supplemented from time to time in
accordance with the terms of this Indenture.
"OBLIGATION" means any principal, interest, penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.
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"OFFERING MEMORANDUM" means the offering memorandum of the Issuers
relating to the Notes dated February 5, 2004.
"OFFICER" means any of the following of the Issuer: the Chairman of the
Board of Directors, 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 two Officers.
"OFFERING" means the offering of the Notes by the Issuer pursuant to
the Offering Memorandum in connection with the funding of the Acquisition.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Issuer, a Guarantor or the Trustee.
"PARENT" means Ply Gem Holdings, Inc., a Delaware corporation, and its
successors and assigns.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the Issuer or any
Guarantor that ranks PARI PASSU in right of payment with the Notes or the Note
Guarantees, as applicable.
"PERMANENT REGULATION S GLOBAL NOTE" has the meaning given to such term
in Section 2.01.
"PERMITTED BUSINESS" means the businesses engaged in by the Issuer and
its Subsidiaries on the Issue Date as described in the Offering Memorandum and
businesses that are reasonably related thereto, reasonable extensions thereof or
necessary or desirable to facilitate any such business, and any unrelated
business to the extent that it is not material in size as compared with the
Issuer's business as a whole.
"PERMITTED HOLDERS" means (1) Sponsor, Caxton Associates, LLC,
Caxton-Iseman (Ply Gem) L.P., Frederick J. Iseman, Lee D. Meyer, John Wayne,
Shawn Poe, Mark Watson, Bryan Sveinson, David S. McCready, Robert A. Ferris,
Steven M. Lefkowitz and any other Person that is a controlled Affiliate of any
of the foregoing and (2) any Related Party of any of the foregoing; PROVIDED
that in no event shall any operating portfolio company or any holding company
for any operating portfolio company (other than the Issuer) shall be a Permitted
Holder.
"PERMITTED INVESTMENT" means:
(1) (i) Investments by the Issuer or any Subsidiary Guarantor in
(a) any Restricted Subsidiary that is a Subsidiary Guarantor or (b) any
Person that will become immediately after such Investment a Restricted
Subsidiary that is a Subsidiary Guarantor or that will merge or consolidate
into the Issuer or any Restricted Subsidiary that is a Sub-
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sidiary Guarantor and (ii) Investments by any Restricted Subsidiary that is
not a Subsidiary Guarantor in any other Restricted Subsidiary;
(2) Investments in the Issuer by any Restricted Subsidiary;
(3) loans and advances to directors, employees and officers of the
Issuer and the Restricted Subsidiaries for bona fide business purposes and
to purchase Equity Interests of the Issuer, Parent or Holdings not in
excess of $5.0 million at any one time outstanding;
(4) Hedging Obligations incurred pursuant to Section 4.10;
(5) cash and Cash Equivalents;
(6) receivables owing to the Issuer or any Restricted Subsidiary
if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; PROVIDED, HOWEVER,
that such trade terms may include such concessionary trade terms as the
Issuer or any such Restricted Subsidiary deems reasonable under the
circumstances;
(7) Investments in securities of trade creditors or customers
received upon foreclosure or pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade
creditors or customers;
(8) Investments made by the Issuer or any Restricted Subsidiary as
a result of consideration received in connection with an Asset Sale made in
compliance with Section 4.13;
(9) lease, utility and other similar deposits in the ordinary
course of business;
(10) Investments made by the Issuer or a Restricted Subsidiary for
consideration consisting only of Qualified Equity Interests;
(11) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Issuer or
any Restricted Subsidiary or in satisfaction of judgments;
(12) guarantees of Indebtedness permitted to be incurred under this
Indenture;
(13) loans and advances to suppliers, licensees, franchisees or
customers of the Issuer or any Restricted Subsidiary made in the ordinary
course of business in an aggregate amount, together with the aggregate
amount of Indebtedness under clause (14) of the definition of "Permitted
Indebtedness," not to exceed $5.0 million at any time outstanding;
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(14) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as operating
expenses for accounting purposes and that are made in the ordinary course
of business;
(15) Investments in existence on the Issue Date;
(16) prepaid expenses, negotiable instruments held for collection
and workers' compensation, performance and other similar deposits in the
ordinary course of business;
(17) Investments in an aggregate amount not to exceed, at any one
time outstanding, the greater of (a) $20.0 million and (b) 7.0% of
Consolidated Net Tangible Assets at such time (with each Investment being
valued as of the date made and without regard to subsequent changes in
value);
(18) Investments in Subsidiaries that are not Guarantors or Foreign
Subsidiaries in an aggregate amount not to exceed $10.0 million at any one
time outstanding (with each Investment being valued as of the date made and
without regard to subsequent changes in value); and
(19) Investments in Foreign Subsidiaries in an aggregate amount not
to exceed, at any one time outstanding, the greater of (a) $10.0 million
and (b) 3.5% of Consolidated Net Tangible Assets at such time (with each
Investment being valued as of the date made and without regard to
subsequent changes in value).
The amount of Investments outstanding at any time pursuant to clause (17), (18)
or (19) above shall be deemed to be reduced:
(a) upon the disposition or repayment of or return on any
Investment made pursuant to clause (17), (18) or (19) above, as the case
may be, by an amount equal to the return of capital with respect to such
Investment to the Issuer or any Restricted Subsidiary (to the extent not
included in the computation of Consolidated Net Income); and
(b) upon a Redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, by an amount equal to the lesser of (x) the Fair
Market Value of the Issuer's proportionate interest in such Subsidiary
immediately following such Redesignation, and (y) the aggregate amount of
Investments in such Subsidiary that increased (and did not previously
decrease) the amount of Investments outstanding pursuant to clause (17),
(18) or (19) above, as the case may be.
"PERMITTED JUNIOR SECURITIES" means:
(1) Equity Interests in the Issuer or any Guarantor; or
(2) debt securities issued pursuant to a confirmed plan of
reorganization that are subordinated in right of payment to (a) all Senior
Debt and Guarantor Senior Debt and (b) any debt securities issued in
exchange for Senior Debt to substantially the same
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extent as, or to a greater extent than, the Notes and the Note Guarantees
are subordinated to Senior Debt and Guarantor Senior Debt under this
Indenture.
"PERMITTED LIENS" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Issuer or the Restricted Subsidiaries shall
have set aside on its books such reserves as may be required pursuant to
GAAP;
(2) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(4) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(5) judgment Liens not giving rise to a Default so long as such
Liens are adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment have not been
finally terminated or the period within which the proceedings may be
initiated has not expired;
(6) easements, rights-of-way, zoning restrictions and other
similar charges, restrictions or encumbrances in respect of real property
or immaterial imperfections of title which do not, in the aggregate, impair
in any material respect the ordinary conduct of the business of the Issuer
and the Restricted Subsidiaries taken as a whole;
(7) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other assets
relating to such letters of credit and products and proceeds thereof;
(8) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements of the
Issuer or any Restricted Subsidiary, including rights of offset and setoff;
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(9) bankers' Liens, rights of setoff and other similar Liens
existing solely with respect to cash and Cash Equivalents on deposit in one
or more of accounts maintained by the Issuer or any Restricted Subsidiary,
in each case granted in the ordinary course of business in favor of the
bank or banks with which such accounts are maintained, securing amounts
owing to such bank with respect to cash management and operating account
arrangements, including those involving pooled accounts and netting
arrangements; PROVIDED that in no case shall any such Liens secure (either
directly or indirectly) the repayment of any Indebtedness;
(10) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Issuer or any
Restricted Subsidiary;
(11) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(12) Liens securing all of the Notes and Liens securing any Note
Guarantee;
(13) Liens securing Senior Debt or Guarantor Senior Debt;
(14) Liens existing on the Issue Date securing Indebtedness
outstanding on the Issue Date;
(15) Liens in favor of the Issuer or a Guarantor;
(16) Liens securing Indebtedness under the Credit Facilities;
(17) Liens securing Purchase Money Indebtedness and Capitalized
Lease Obligations; PROVIDED that such Liens shall not extend to any asset
other than the specified asset being financed and additions and
improvements thereon;
(18) Liens securing Acquired Indebtedness permitted to be incurred
under this Indenture; PROVIDED that the Liens do not extend to assets not
subject to such Lien at the time of acquisition (other than improvements
thereon) and are no more favorable to the lienholders than those securing
such Acquired Indebtedness prior to the incurrence of such Acquired
Indebtedness by the Issuer or a Restricted Subsidiary;
(19) Liens on assets of a Person existing at the time such Person
is acquired or merged with or into or consolidated with the Issuer or any
such Restricted Subsidiary (and not created in anticipation or
contemplation thereof);
(20) Liens to secure Refinancing Indebtedness of Indebtedness
secured by Liens referred to in the foregoing clauses (12), (14), (16),
(17), (18) and (19); PROVIDED that in the case of Liens securing
Refinancing Indebtedness of Indebtedness secured by Liens referred to in
the foregoing clauses (14), (17), (18) and (19), such Liens do not extend
to any additional assets (other than improvements thereon and replacements
thereof);
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(21) Liens securing Indebtedness of any Restricted Subsidiary that
is not a Subsidiary Guarantor permitted to be incurred under this
Indenture; PROVIDED that such Lien extends only to the assets and Equity
Interests of such Restricted Subsidiary;
(22) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; and
(23) Liens with respect to obligations that do not in the aggregate
exceed $5.0 million at any one time outstanding.
"PERMITTED SALE AND LEASEBACK TRANSACTION" means a refinancing by the
Issuer or one of its Subsidiaries following the date of this Indenture of all or
a portion of the Indebtedness outstanding on the Issue Date in an aggregate
principal amount of up to $29.8 million with respect to municipal loan or
related agreements entered into in connection with the incurrence of industrial
revenue bonds, with the proceeds of one or more Sale and Leaseback Transactions
effected as operating leases involving the applicable properties securing such
debt; PROVIDED that (i) the Issuer or such Subsidiary receives consideration at
the time of such Permitted Sale and Leaseback Transaction at least equal to the
Fair Market Value of the applicable property included in such Permitted Sale and
Leaseback Transaction; (ii) at the time of and immediately after giving effect
to such Permitted Sale and Leaseback Transaction and the application of the
proceeds thereof, no Default shall have occurred and be continuing and (iii) the
proceeds of at least 525% of the aggregate operating lease payments in respect
of such Permitted Sale and Leaseback Transaction (such amount, the "PERMITTED
SALE AND LEASEBACK TRANSACTION AMOUNT") are received in the form of cash or Cash
Equivalents and used to repay Senior Debt or Guarantor Senior Debt.
"PERMITTED SALE AND LEASEBACK TRANSACTION AMOUNT" shall have the
meaning assigned to such term in the definition of "Permitted Sale and Leaseback
Transaction."
"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): (1) 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 (2) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition of all
or substantially all of the remaining assets of such Person to holders of Equity
Interests of such Person.
"PREFERRED STOCK" means, with respect to any Person, any and all
preferred or preference stock or other equity interests (however designated) of
such Person whether now outstanding or issued after the Issue Date.
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"PRINCIPAL" means, with respect to the Notes, the principal of, and
premium, if any, on the Notes.
"PRIVATE EXCHANGE" has the meaning given to it in the Registration
Rights Agreement.
"PRIVATE EXCHANGE NOTES" has the meaning given to it in the
Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means the legends initially set forth on the
Notes in the form set forth in EXHIBIT B.
"PRO FORMA COST SAVINGS" means, with respect to any period, the
reductions in costs that occurred during the Four-Quarter Period that are (1)
directly attributable to an asset acquisition and calculated on a basis that is
consistent with Article 11 of Regulation S-X under the Securities Act or (2)
implemented, committed to be implemented or the commencement of implementation
of which has begun in good faith by the business that was the subject of any
such asset acquisition within six months of the date of the asset acquisition
and that are supportable and quantifiable by the underlying records of such
business, as if, in the case of each of clauses (1) and (2), all such reductions
in costs had been effected as of the beginning of such period, decreased by any
incremental expenses incurred or to be incurred during the Four-Quarter Period
in order to achieve such reduction in costs.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness, including Capitalized
Lease Obligations, of the Issuer or any Restricted Subsidiary incurred for the
purpose of financing all or any part of the purchase price of property, plant or
equipment used in the business of the Issuer or any Restricted Subsidiary or the
cost of installation, construction or improvement thereof, and the payment of
any sales or other taxes associated therewith; PROVIDED, HOWEVER, that (1) the
amount of such Indebtedness shall not exceed such purchase price or cost and
payment and (2) such Indebtedness shall be incurred within one year after such
acquisition of such asset by the Issuer or such Restricted Subsidiary or such
installation, construction or improvement.
"QUALIFIED EQUITY INTERESTS" means Equity Interests of the Issuer other
than Disqualified Equity Interests; PROVIDED that such Equity Interests shall
not be deemed Qualified Equity Interests to the extent sold or owed to a
Subsidiary of the Issuer or financed, directly or indirectly, using funds (1)
borrowed from the Issuer or any Subsidiary of the Issuer until and to the extent
such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by
the Issuer or any Subsidiary of the Issuer (including, without limitation, in
respect of any employee stock ownership or benefit plan).
"QUALIFIED EQUITY OFFERING" means the issuance and sale of Qualified
Equity Interests by the Issuer or Equity Interests by Parent or Holdings;
PROVIDED, HOWEVER, that in the case of an issuance or sale of Equity Interests
of Parent or Holdings, cash proceeds therefrom equal to not less than 100% of
the aggregate principal amount of any Notes to be redeemed are received by the
Issuer as a capital contribution or consideration for the issuance and sale of
Qualified Equity Interests immediately prior to such redemption.
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"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"RECORD DATE" means the applicable Record Date specified in the Notes;
PROVIDED that if any such date is not a Business Day, the Record Date shall be
the first day immediately succeeding such specified day that is a Business Day.
"REDEEM" means to redeem, repurchase, purchase, defease, retire,
discharge or otherwise acquire or retire for value; and "REDEMPTION" shall have
a correlative meaning; provided that this definition shall not apply for
purposes of Section 5 or Section 6 of the Notes or Article Three.
"REDEMPTION DATE," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
"REDEMPTION PRICE," when used with respect to any Note to be redeemed,
means the price fixed for such redemption, payable in immediately available
funds, pursuant to this Indenture and the Notes.
"REFINANCE" means to refinance, repay, prepay, replace, renew, refund,
redeem, defease or retire.
"REFINANCING INDEBTEDNESS" means Indebtedness of the Issuer 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 redeem
or refinance in whole or in part, any Indebtedness of the Issuer or any
Restricted Subsidiary (the "REFINANCED INDEBTEDNESS"); PROVIDED that:
(1) the principal amount (or accreted value, in the case of
Indebtedness issued at a discount) of the Refinancing Indebtedness does not
exceed the principal amount (or accreted value, as the case may be) of the
Refinanced Indebtedness plus the amount of accrued and unpaid interest on
the Refinanced Indebtedness, any premium paid to the holders of the
Refinanced Indebtedness and reasonable expenses incurred in connection with
the incurrence of the Refinancing Indebtedness;
(2) the Refinancing Indebtedness is the obligation of the same
Person as that of the Refinanced Indebtedness;
(3) if the Refinanced Indebtedness was subordinated in right of
payment to the Notes or the Note Guarantees, as the case may be, then such
Refinancing Indebtedness, by its terms, is subordinate in right of payment
to the Notes or the Note Guarantees, as the case may be, at least to the
same extent as the Refinanced Indebtedness, and if the Refinanced
Indebtedness was PARI PASSU with the Notes or the Note Guarantees, as the
case may be, then the Refinancing Indebtedness ranks PARI PASSU with, or is
subordinated in right of payment to, the Notes or the Note Guarantees, as
the case may be;
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(4) the Refinancing Indebtedness has a final Stated Maturity
either (a) no earlier than the Refinanced Indebtedness being repaid or
amended or (b) after the maturity date of the Notes; and
(5) 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.
"REGISTRATION RIGHTS AGREEMENT" means (i) the Registration Rights
Agreement dated as of the Issue Date among the Issuer, the Guarantors and the
Initial Purchasers and (ii) any other registration rights agreement entered into
in connection with an issuance of Additional Notes in a private offering after
the Issue Date.
"REGULATION S" means Regulation S under the Securities Act.
"RELATED PARTY" means, with respect to any Person, (1) any controlling
stockholder, controlling member, general partner, Subsidiary, or spouse or
immediate family member (in the case of an individual), of such Person, (2) any
estate, trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners or owners of which consist solely of one or more
Permitted Holders and/or such other Persons referred to in the immediately
preceding clause (1), or (3) any executor, administrator, trustee, manager,
director or other similar fiduciary of any Person referred to in the immediately
preceding clause (2), acting solely in such capacity.
"REPRESENTATIVE" means any agent or representative in respect of any
Designated Senior Debt; PROVIDED that if, and for so long as, any Designated
Senior Debt lacks such representative, then the Representative for such
Designated Senior Debt shall at all times constitute the holders of a majority
in outstanding principal amount of such Designated Senior Debt.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
officer in the Corporate Trust Office of the Trustee to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject and shall also mean any officer who shall have direct
responsibility for the administration of this Indenture.
"RESTRICTED PAYMENT" means any of the following:
(1) the declaration or payment of any dividend or any other
distribution on Equity Interests of the Issuer or any Restricted Subsidiary
or any payment made to the direct or indirect holders (in their capacities
as such) of Equity Interests of the Issuer or any Restricted Subsidiary,
including, without limitation, any payment in connection with any merger or
consolidation involving the Issuer but excluding (a) dividends or
distributions payable solely in Qualified Equity Interests or through
accretion or accumulation of such dividends on such Equity Interests and
(b) in the case of Restricted Subsidiaries, dividends or distributions
payable to the Issuer or to a Restricted Subsidiary and PRO RATA dividends
or distributions payable to minority stockholders of any Restricted
Subsidiary;
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(2) the redemption of any Equity Interests of the Issuer or any
Restricted Subsidiary, or any equity holder of the Issuer, including,
without limitation, any payment in connection with any merger or
consolidation involving the Issuer but excluding any such Equity Interests
held by the Issuer or any Restricted Subsidiary;
(3) any Investment other than a Permitted Investment; or
(4) any redemption 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 SECURITY" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
PROVIDED, HOWEVER, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer other than
an Unrestricted Subsidiary.
"RESTRUCTURING EXPENSES" means losses, expenses and charges incurred in
connection with restructuring within the Issuer and/or one or more Restricted
Subsidiaries, including in connection with integration of acquired businesses or
Persons, disposition of one or more Subsidiaries or businesses, exiting of one
or more lines of businesses and relocation or consolidation of facilities,
including severance, lease termination and other non-ordinary-course,
non-operating costs and expenses in connection therewith.
"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 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 asset.
"SEC" means the U.S. Securities and Exchange Commission.
"SECRETARY'S CERTIFICATE" means a certificate signed by the Secretary
of the Issuer.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
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"SENIOR DEBT" means the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on and
all Obligations of any Indebtedness of the Issuer, whether outstanding on the
Issue Date or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes.
Without limiting the generality of the foregoing, "Senior Debt" shall
include the principal of, premium, if any, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing in respect of:
(1) all monetary obligations of every nature under, or with
respect to, the Credit Facilities, including, without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities (and guarantees thereof);
and
(2) all Hedging Obligations in respect of the Credit Facilities;
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Senior Debt" shall not include:
(1) any Indebtedness of the Issuer to Parent or any of its
Subsidiaries;
(2) obligations to trade creditors and other amounts incurred (but
not under the Credit Facilities) in connection with obtaining goods,
materials or services;
(3) Indebtedness represented by Disqualified Equity Interests;
(4) any liability for taxes owed or owing by the Issuer;
(5) that portion of any Indebtedness incurred in violation of
Section 4.10 (but, as to any such obligation, no such violation shall be
deemed to exist for purposes of this clause (6) if the holder(s) of such
obligation or their representative shall have received an Officers'
Certificate of the Issuer to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date on
which the initial borrowing thereunder is made would not) violate such
provisions of this Indenture);
(6) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to the Issuer; and
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(7) any Indebtedness which is, by its express terms, subordinated
in right of payment to any other Indebtedness of the Issuer.
"SIGNIFICANT SUBSIDIARY" means (1) any Restricted Subsidiary that would
be a "significant subsidiary" as defined in Regulation S-X promulgated pursuant
to the Securities Act as such Regulation is in effect on the Issue Date and (2)
any Restricted Subsidiary that, when aggregated with all other Restricted
Subsidiaries that are not otherwise Significant Subsidiaries and as to which any
event described in clause (7) or (8) under Section 6.01 has occurred and is
continuing, or which are being released from their Note Guarantees (in the case
of clause (9) of Section 9.02(b), would constitute a Significant Subsidiary
under clause (1) of this definition.
"SPONSOR" means Caxton-Iseman Capital, Inc.
"STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement, dated as
of the Issue Date, by and among Ply Gem Investment Holdings, Inc., Caxton-Iseman
(Ply Gem), L.P. and certain members of our management and other parties thereto.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any Indebtedness, the date on which such payment of interest or
principal is scheduled to be paid in the documentation governing such
Indebtedness, and shall not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Issuer or any
Restricted Subsidiary that is expressly subordinated in right of payment to the
Notes or the Note Guarantees, respectively.
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation, limited liability company, association or
other business entity of which more than 50% of the total voting power of
the Equity Interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Board of Directors thereof are
at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person (or a combination
thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
Unless otherwise specified, "Subsidiary" refers to a Subsidiary of the Issuer.
"SUBSIDIARY GUARANTOR" means any Guarantor other than Parent.
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"TEMPORARY REGULATION S GLOBAL NOTE" has the meaning given to such term
in Section 2.01.
"TRANSACTIONS" means (i) the Acquisition; (ii) the Equity Contribution;
(iii) the Bank Financing; and (iv) the Offering.
"TREASURY RATE" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to the First Call Date;
PROVIDED, HOWEVER, that if the period from such Redemption Date to the First
Call Date is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the period from such Redemption Date
to the First Call Date is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"UNRESTRICTED SUBSIDIARY" means (1) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Issuer in accordance with Section 4.19 and (2) any Subsidiary
of an Unrestricted Subsidiary.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable 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 is
pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United States of
America that at the time of payment shall be legal tender for the payment of
public and private debts.
"VOTING STOCK" with respect to any Person, means securities of any
class of Equity Interests 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 (1) 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)
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the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment by (2) the then outstanding
principal amount of such Indebtedness.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary of
which 100% of the Equity Interests (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, but which interest is not
in excess of what is required for such purpose) are owned directly by the Issuer
or through one or more Wholly-Owned Restricted Subsidiaries.
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SECTION 1.02. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
- ---- ------------------
"Additional Notes".................................... 2.02
"Affiliate Transaction"............................... 4.14
"Authentication Order"................................ 2.02
"Change of Control Offer"............................. 4.09
"Change of Control Payment Date"...................... 4.09
"Change of Control Purchase Price".................... 4.09
"Covenant Defeasance"................................. 8.02
"Coverage Ratio Exception"............................ 4.10
"Designation"......................................... 4.19
"Designation Amount".................................. 4.19
"Event of Default".................................... 6.01
"Excess Proceeds"..................................... 4.13
"Four-Quarter Period"................................. 1.01
"Global Note"......................................... 2.01
"Guarantee Obligations"............................... 11.01
"IAI Global Note"..................................... 2.01
"Legal Defeasance".................................... 8.02
"Net Proceeds Deficiency"............................. 4.13
"Net Proceeds Offer".................................. 4.13
"Net Proceeds Payment Date"........................... 4.13
"Non-Payment Default"................................. 10.02
"Offered Price"....................................... 4.13
"Pari Passu Indebtedness Price"....................... 4.13
"Parent Successor".................................... 5.01
"Participants"........................................ 2.15
"Paying Agent"........................................ 2.03
"Payment Amount"...................................... 4.13
"Payment Blockage Notice"............................. 10.02
"Payment Blockage Period"............................. 10.02
"Payment Default"..................................... 10.02
"Permitted Indebtedness".............................. 4.10
"Physical Notes"...................................... 2.01
"Redesignation"....................................... 4.19
"Registrar"........................................... 2.03
"Regulation S Global Note"............................ 2.01
"Restricted Payments Basket".......................... 4.11
"Successor"........................................... 5.01
"Transaction Date" ................................... 1.01
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SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, such provision is incorporated by reference in, and made a part of, this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"INDENTURE SECURITIES" means the Notes.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Issuer, any Guarantor
or any other obligor on the Notes.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by SEC rule and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(7) the words "including," "includes" and similar words shall be
deemed to be followed by "without limitation."
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ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Issuer shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its issuance and show
the date of its authentication. Each Note shall have an executed Note Guarantee
from each of the Guarantors existing on the Issue Date endorsed thereon
substantially in the form of EXHIBIT F.
The terms and provisions contained in the Notes and the Note Guarantees
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Issuer, 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 in reliance on Rule 144A shall be issued
initially in the form of a single permanent global Note in registered form,
substantially in the form set forth in EXHIBIT A (the "144A GLOBAL NOTE"),
deposited with the Trustee, as custodian for the Depository, duly executed by
the Issuer (and having an executed Note Guarantee from each of the Guarantors
endorsed thereon) and authenticated by the Trustee as hereinafter provided and
shall bear the legends set forth in EXHIBIT B.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Note in registered form, substantially in the form of Exhibit A (the "TEMPORARY
REGULATION S GLOBAL NOTE"), deposited with the Trustee, as custodian for the
Depository, duly executed by the Issuer (and having an executed Note Guarantee
from each of the Guarantors endorsed thereon) and authenticated by the Trustee
as hereinafter provided and shall bear the legends set forth in EXHIBIT B.
Reasonably promptly following the date that is 40 days after the later of the
commencement of the offering of the Notes in reliance on Regulation S and the
Issue Date, upon receipt by the Trustee and the Issuer of a duly executed
certificate certifying that the Holder of the beneficial interest in the
Temporary Regulation S Global Note is a Non-U.S. Person, substantially in the
form of EXHIBIT E from the Depository, a single permanent global Note in
registered form substantially in the form of EXHIBIT A (the "PERMANENT
REGULATION S GLOBAL NOTE," and together with the Temporary Regulation S Global
Note, the "REGULATION S GLOBAL NOTE") duly executed by the Issuer (and having an
executed Note Guarantee from each of the Guarantors endorsed thereon) and
authenticated by the Trustee as hereinafter provided shall be deposited with the
Trustee, as custodian for the Depository, and the Registrar shall reflect on its
books and records the cancellation of the Temporary Regulation S Global Note and
the issuance of the Permanent Regulation S Global Note.
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The initial offer and resale of the Notes shall not be to an
Institutional Accredited Investor. The Notes resold to Institutional Accredited
Investors in connection with the first transfer made pursuant to Section 2.16(a)
shall be issued initially in the form of a single permanent Global Note in
registered form, substantially in the form set forth in EXHIBIT A (the "IAI
GLOBAL NOTE," and, together with the 144A Global Note and the Regulation S
Global Note, the "INITIAL GLOBAL NOTES"), deposited with the Trustee, as
custodian for the Depository, duly executed by the Issuer (and having an
executed Note Guarantee from each of the Guarantors endorsed thereon) and
authenticated by the Trustee as hereinafter provided and shall bear the legend
set forth in EXHIBIT B.
Notes issued after the Issue Date shall be issued initially in the form
of one or more global Notes in registered form, substantially in the form set
forth in EXHIBIT A, deposited with the Trustee, as custodian for the Depository,
duly executed by the Issuer (and having an executed Note Guarantee from each of
the Guarantors endorsed thereon) and authenticated by the Trustee as hereinafter
provided and shall bear any legends required by applicable law (together with
the Initial Global Notes, the "GLOBAL NOTES") or as Physical Notes.
The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided. Notes issued
in exchange for interests in a Global Note pursuant to Section 2.16 may be
issued in the form of permanent certificated Notes in registered form in
substantially the form set forth in EXHIBIT A and bearing the applicable
legends, if any, (the "PHYSICAL NOTES").
SECTION 2.02. EXECUTION, AUTHENTICATION AND DENOMINATION; ADDITIONAL NOTES;
EXCHANGE NOTES
One Officer of the Issuer (who shall have been duly authorized by all
requisite corporate actions) shall sign the Notes for such Issuer by manual or
facsimile signature. One Officer of a Guarantor (who shall have been duly
authorized by all requisite corporate actions) shall sign the Note Guarantee for
such Guarantor by manual or facsimile signature.
If an Officer whose signature is on a Note or Note Guarantee, as the
case may be, was an Officer at the time of such execution but no longer holds
that office at the time the Trustee authenticates the Note, the Note shall
nevertheless be valid.
A Note (and the Note Guarantees in respect thereof) shall not be valid
until an authorized signatory of the Trustee manually signs the certificate of
authentication on the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) on the Issue Date, Notes for
original issue in the aggregate principal amount not to exceed $225,000,000 (the
"INITIAL NOTES"), (ii) additional Notes (the "ADDITIONAL NOTES") having
identical terms and conditions to the Initial Notes, except for issue date,
issue price and first interest payment date, in an unlimited amount (so long as
not otherwise prohibited by the terms of this Indenture, including, without
limitation, Section 4.10)
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and (iii) Exchange Notes or Private Exchange Notes (x) in exchange for a like
principal amount of Initial Notes or (y) in exchange for a like principal amount
of Additional Notes in each case upon a written order of the Company in the form
of a certificate of an Officer of the Company (an "AUTHENTICATION ORDER"). Each
such Authentication Order shall specify the amount of Notes to be authenticated
and the date on which the Notes are to be authenticated, whether the Notes are
to be Initial Notes, Exchange Notes, Private Exchange Notes or Additional Notes
and whether the Notes are to be issued as certificated Notes or Global Notes or
such other information as the Trustee may reasonably request. In addition, with
respect to authentication pursuant to clause (ii) or (iii) of the first sentence
of this paragraph, the first such Authentication Order from the Company shall be
accompanied by an Opinion of Counsel of the Company in a form reasonably
satisfactory to the Trustee.
All Notes issued under this Indenture shall be treated as a single
class for all purposes under this Indenture. The Additional Notes and the
Private Exchange Notes shall bear any legend required by applicable law.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuer to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Issuer and Affiliates of the Issuer. The
Trustee shall have the right to decline to authenticate and deliver any Notes
under this Indenture if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken or if the Trustee in good faith shall
determine that such action would expose the Trustee to personal liability.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Issuer shall maintain or cause to be maintained an office or agency
in the Borough of Manhattan, The City of New York, where (a) Notes may be
presented or surrendered for registration of transfer or for exchange
("REGISTRAR"), (b) Notes may, subject to Section 2 of the Notes, be presented or
surrendered for payment ("PAYING AGENT") and (c) notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The Issuer
may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain or cause to be maintained an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Issuer may
act as Registrar or Paying Agent, except that for the purposes of Article Eight,
neither the Issuer nor any Affiliate of the Issuer shall act as Paying Agent.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuer, upon notice to the Trustee, may have one or more
co-registrars and one or more additional
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paying agents reasonably acceptable to the Trustee. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Issuer initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed.
The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuer shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Issuer shall require each Paying Agent other than the Trustee or
the Issuer or any Subsidiary to agree in writing that, subject to Article Ten
and Section 11.02, each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Issuer or any other obligor on the Notes), and shall
notify the Trustee of any Default by the Issuer (or any other obligor on the
Notes) in making any such payment. The Issuer at any time may require a Paying
Agent to distribute all assets held by it to the Trustee and account for any
assets disbursed and the Trustee may at any time during the continuance of any
payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Issuer to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
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. If the Trustee is not the Registrar, the Issuer shall furnish to the
Trustee at least two (2) Business Days prior to each Interest Payment Date and
at such other times as the Trustee may request in writing a list, in such form
and as of such date as the Trustee may reasonably require, of the names and
addresses of Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. TRANSFER AND EXCHANGE.
Subject to Sections 2.15 and 2.16, when Notes are presented to the
Registrar with a request to register the transfer of such Notes or to exchange
such Notes for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; PROVIDED, HOWEVER,
that the Notes surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Registrar, duly executed by the Holder thereof or his or her
attorney duly authorized in writing. To permit registrations of transfers and
exchanges, the Issuer shall execute and the Trustee shall authenticate Notes at
the Registrar's request. No service charge shall be made for any registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
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Without the prior written consent of the Issuer, the Registrar shall
not be required to register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Notes and ending at the close of business on the day of
such mailing, (ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note being redeemed in part,
and (iii) beginning at the opening of business on any Record Date and ending on
the close of business on the related Interest Payment Date.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Notes may be effected only through a book-entry system
maintained by the Holder of such Global Note (or its agent) in accordance with
the applicable legends thereon, and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book-entry system.
SECTION 2.07. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Issuer shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. Such Holder must provide an indemnity bond or
other indemnity, sufficient in the judgment of both the Issuer and the Trustee,
to protect the Issuer, the Trustee or any Agent from any loss which any of them
may suffer if a Note is replaced. The Issuer may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Note pursuant to this Section
2.07, including reasonable fees and expenses of counsel and of the Trustee.
Every replacement Note is an additional obligation of the Issuer and
every replacement Note Guarantee shall constitute an additional obligation of
the Guarantor thereof.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of lost, destroyed or wrongfully taken Notes.
SECTION 2.08. OUTSTANDING NOTES.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. A Note
does not cease to be outstanding because the Issuer, the Guarantors or any of
their respective Affiliates hold the Note (subject to the provisions of Section
2.09).
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless a
Responsible Officer of the Trustee receives proof satisfactory to it that the
replaced Note is held by a BONA FIDE purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
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If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest ceases to accrue. If on a
Redemption Date or the Maturity Date the Trustee or Paying Agent (other than the
Issuer or an Affiliate thereof) holds U.S. Legal Tender or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the Notes
payable on that date, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. 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
Issuer or any of its Affiliates shall be disregarded, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Issuer may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuer considers appropriate for temporary Notes. Without unreasonable delay,
the Issuer shall prepare and the Trustee 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.
Notwithstanding the foregoing, so long as the Notes are represented by a Global
Note, such Global Note may be in typewritten form.
SECTION 2.11. CANCELLATION.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Issuer or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Issuer, shall dispose of all Notes surrendered for transfer,
exchange, payment or cancellation in accordance with its customary procedures.
Subject to Section 2.07, the Issuer may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation. If the Issuer or
any Guarantor shall acquire any of the Notes, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by such Notes
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Issuer defaults in a payment of interest on the Notes, it shall
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest, in any lawful manner. The Issuer may pay the defaulted
interest to the persons who are Holders on a subsequent special record date,
which date shall be the fifteenth day next preceding the date
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fixed by the Issuer for the payment of defaulted interest or the next succeeding
Business Day if such date is not a Business Day. At least 15 days before any
such subsequent special record date, the Issuer shall mail to each Holder, with
a copy to the Trustee, a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest, and interest payable on
such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP AND ISIN NUMBERS.
The Issuer in issuing the Notes may use "CUSIP" or "ISIN" numbers, and
if so, the Trustee shall use the "CUSIP" or "ISIN" numbers in notices of
redemption or exchange as a convenience to Holders; PROVIDED, HOWEVER, that any
such notice may state that no representation is made as to the correctness or
accuracy of the "CUSIP" or "ISIN" 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 Issuer will promptly notify the Trustee of any change in the
"CUSIP" or "ISIN" numbers.
SECTION 2.14. DEPOSIT OF MONEYS.
Subject to Section 2 of the Notes, prior to 10:00 a.m. New York City
time on each Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Net Proceeds Payment Date, the Issuer shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Payment Date and Net Proceeds Payment Date,
as the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Payment Date and Net Proceeds Payment Date, as the case
may be.
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
EXHIBIT B, as applicable.
Members of, or participants in, the Depository ("PARTICIPANTS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Issuer, the Trustee and
any agent of the Issuer or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with
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the rules and procedures of the Depository and the provisions of Section 2.16.
In addition, Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Notes if (i) the Depository
notifies the Issuer that it is unwilling or unable to act as Depository for any
Global Note, the Issuer so notifies the Trustee in writing and a successor
Depository is not appointed by the Issuer within 90 days of such notice or (ii)
the Issuer, at its option, notifies the Trustee in writing that it elects to
cause the issuance of the Notes in the form of Physical Notes under this
Indenture. Upon any issuance of a Physical Note in accordance with this Section
2.15(b) the Trustee is required to register such Physical Note in the name of,
and cause the same to be delivered to, such person or persons (or the nominee of
any thereof). All such Physical Notes shall bear the applicable legends, if any.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in a Global Note to beneficial owners pursuant to
paragraph (b) of this Section 2.15, the Registrar shall (if one or more Physical
Notes are to be issued) reflect on its books and records the date and a decrease
in the principal amount of such Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and the
Issuer shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of authorized denominations in an aggregate principal amount
equal to the principal amount of the beneficial interest in the Global Note so
transferred.
(d) In connection with the transfer of a Global Note as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and (i) the Issuer shall execute, (ii) the Guarantors shall
execute notations of Note Guarantees on and (iii) the Trustee shall upon written
instructions from the Issuer authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in such
Global Note, an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) or (c) of
this Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
SECTION 2.16. SPECIAL TRANSFER AND EXCHANGE PROVISIONS.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Restricted Security to any Institutional Accredited
Investor which is not a QIB:
(i) the Registrar shall register the transfer of any Restricted
Security, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; PROVIDED, HOWEVER, that neither the Issuer nor any Affiliate of the
Issuer has held any beneficial interest in such Note, or portion
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thereof, at any time on or prior to the second anniversary of the Issue
Date or (y) the proposed transferee has delivered to the Registrar a
certificate substantially in the form of EXHIBIT C hereto and any legal
opinions and certifications as may be reasonably requested by the Trustee
and the Issuer;
(ii) if the proposed transferee is a Participant and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the IAI Global Note, upon receipt by the
Registrar of the Physical Note and (x) written instructions given in
accordance with the Depository's and the Registrar's procedures and (y) the
certificate, if required, referred to in clause (y) of paragraph (i) above
(and any legal opinion or other certifications), the Registrar shall
register the transfer and reflect on its books and records the date and an
increase in the principal amount of the IAI Global Note in an amount equal
to the principal amount of Physical Notes to be transferred, and the
Registrar shall cancel the Physical Notes so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of (x)
written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the certificate, if required, referred to in
clause (y) of paragraph (i) above, the Registrar shall register the
transfer and reflect on its books and records the date and (A) a decrease
in the principal amount of the Global Note from which such interests are to
be transferred in an amount equal to the principal amount of the Notes to
be transferred and (B) an increase in the principal amount of the IAI
Global Note in an amount equal to the principal amount of the Notes to be
transferred.
(b) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
(i) the Registrar shall register the transfer of any Restricted
Security, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; PROVIDED, HOWEVER, that neither the Issuer nor any Affiliate of the
Issuer has held any beneficial interest in such Note, or portion thereof,
at any time on or prior to the second anniversary of the Issue Date or (y)
such transfer is being made by a proposed transferor who has checked the
box provided for on the applicable Global Note stating, or has otherwise
advised the Issuer 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 applicable Global Note
stating, or has otherwise advised the Issuer 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 Issuer 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;
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(ii) if the proposed transferee is a Participant and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of the Physical Note and written instructions given in accordance
with the Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its book and records the date and an
increase in the principal amount of the 144A Global Note in an amount equal
to the principal amount of Physical Notes to be transferred, and the
Registrar shall cancel the Physical Notes so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in the IAI Global Note or the Regulation S Global
Note, upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall register the transfer and reflect on its books and records
the date and (A) a decrease in the principal amount of the IAI Global Note
or the Regulation S Global Note, as the case may be, in an amount equal to
the principal amount of the Notes to be transferred and (B) an increase in
the principal amount of the 144A Global Note in an amount equal to the
principal amount of the Notes to be transferred.
(c) TRANSFERS OF INTERESTS IN THE TEMPORARY REGULATION S GLOBAL
NOTE. The following provisions shall apply with respect to the registration of
any proposed transfer of interests in the Temporary Regulation S Global Note:
(i) the Registrar shall register the transfer of an interest in
the Temporary Regulation S Global Note, whether or not such Global Note
bears the Private Placement Legend if the proposed transferor has delivered
to the Registrar a certificate substantially in the form of EXHIBIT E
stating, among other things, that the proposed transferee is a Non-U.S.
Person (except for a transfer to an Initial Purchaser);
(ii) if the proposed transferee is a Participant, upon receipt by
the Registrar of the documents referred to in clause (i)(x) above, if
required, and instructions given in accordance with the Depository's and
the Registrar's procedures, the Registrar shall reflect on its books and
records the date and amount of such transfer of an interest in the
Temporary Regulation S Global Note.
(d) TRANSFERS TO NON-U.S. PERSONS. The following provisions shall apply
with respect to any transfer of a Restricted Security to a Non-U.S.
Person under Regulation S:
(i) the Registrar shall register any proposed transfer of a
Restricted Security to a Non-U.S. Person upon receipt of a certificate
substantially in the form of EXHIBIT D from the proposed transferor and
such certifications, legal opinions and other information as the Trustee or
the Issuer may reasonably request; and
(ii) (a) if the proposed transferor is a Participant holding a
beneficial interest in the Rule 144A Global Note or the IAI Global Note or
the Note to be transferred consists of Physical Notes, upon receipt by the
Registrar of (x) the documents required by paragraph (i) and (y)
instructions in accordance with the Depository's and the Registrar's
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procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Rule 144A Global Note or the
IAI Global Note, as the case may be, in an amount equal to the principal
amount of the beneficial interest in the Rule 144A Global Note or the IAI
Global Note, as the case may be, to be transferred or cancel the Physical
Notes to be transferred, and (b) if the proposed transferee is a
Participant, upon receipt by the Registrar of instructions given in
accordance with the Depository'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 Permanent Regulation S Global Note in an
amount equal to the principal amount of the Rule 144A Global Note, the IAI
Global Note or the Physical Notes, as the case may be, to be transferred.
(e) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate one or more Global Notes and/or Physical Notes not
bearing the Private Placement Legend in an aggregate principal amount equal to
the principal amount of the beneficial interests in the Initial Global Notes or
Physical Notes, as the case may be, tendered for acceptance in accordance with
the Exchange Offer and accepted for exchange in the Exchange Offer.
(f) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(g) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend unless otherwise
required by applicable law, the Registrar shall deliver Notes that do not bear
the Private Placement Legend. Upon the transfer, exchange or replacement of
Notes bearing the Private Placement Legend, the Registrar shall deliver only
Notes that bear the Private Placement Legend unless (i) there is delivered to
the Trustee an Opinion of Counsel reasonably satisfactory to the Issuer 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 or (ii) such Note has been offered and sold (including pursuant
to the Exchange Offer) pursuant to an effective registration statement under the
Securities Act.
(h) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or Section 2.16. The
Issuer 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.
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The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Depository Participants or
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
The Trustee shall have no responsibility for the actions or omissions
of the Depository, or the accuracy of the books and records of the Depository.
(i) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTE. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Physical Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Physical Notes,
the principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Issuer elects to redeem Notes pursuant to Section 5 or Section 6
of the Notes, it shall notify the Trustee in writing of the Redemption Date, the
Redemption Price and the principal amount of Notes to be redeemed. The Issuer
shall give notice of redemption to the Trustee at least 31 days but not more
than 60 days before the Redemption Date (unless a shorter notice shall be agreed
to by the Trustee), together with such documentation and records as shall enable
the Trustee to select the Notes to be redeemed.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time pursuant
to Sections 5 and 6 of the Notes, the Trustee will select Notes for redemption
as follows:
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(x) if the Notes are listed on a national securities exchange, in
compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(y) if the Notes are not so listed, on a PRO RATA basis, by lot or
by such method as the Trustee shall deem fair and appropriate;
PROVIDED that, in the case of such redemption pursuant to Section 6(a) of the
Notes, the Trustee will select the Notes on a PRO RATA basis or on as nearly a
PRO RATA basis as practicable (subject to the procedures of the Depository)
unless that method is otherwise prohibited.
No Notes of $1,000 or less shall be redeemed in part.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Issuer shall mail a notice of redemption by first class mail, postage
prepaid, to each Holder whose Notes are to be redeemed at its registered address
(except that a notice issued in connection with a redemption referred to in
Section 8.01 may be more than 60 days before such Redemption Date). At the
Issuer's request, the Trustee shall forward the notice of redemption in the
Issuer's name and at the Issuer's expense. Each notice for redemption shall
identify the Notes (including the CUSIP or ISIN number) to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if any;
(5) that, unless the Issuer defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price upon surrender to
the Paying Agent of the Notes redeemed;
(6) 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, and upon surrender and cancellation of such Note, a new Note or Notes
in aggregate principal amount equal to the unredeemed portion thereof will
be issued;
(7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Notes to be redeemed and the
aggregate principal
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amount of Notes to be outstanding after such partial redemption; and
(8) the Section of the Notes or this Indenture, as applicable,
pursuant to which the Notes are to be redeemed.
The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note. Except with respect to redemption pursuant to Section 6(b) of the
Notes, notices of redemption may not be conditional.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to, but not
including, the Redemption Date), but installments of interest, the maturity of
which is on or prior to the Redemption Date, shall be payable to Holders of
record at the close of business on the relevant Record Dates. On and after the
Redemption Date interest shall cease to accrue on Notes or portions thereof
called for redemption unless the Issuer shall have not complied with its
obligations pursuant to Section 3.05.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m. New York time on the Redemption Date, the
Issuer shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price plus accrued and unpaid interest, if any, of all Notes to
be redeemed on that date.
If the Issuer complies with the preceding paragraph, then, unless the
Issuer defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Notes to be redeemed will cease to accrue on and after
the applicable Redemption Date, whether or not such Notes are presented for
payment.
SECTION 3.06. NOTES REDEEMED IN PART.
If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note or Notes in principal amount equal to the
unredeemed portion of the original Note or Notes shall be issued in the name of
the Holder thereof upon surrender and cancellation of the original Note or
Notes.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Issuer shall pay the principal of (and premium, if any) and
interest on the Notes in the manner provided in the Notes, the Registration
Rights Agreement and this Indenture. An installment of principal of, or interest
on, the Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Issuer or an Affiliate thereof) holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment. Interest
on the Notes will be computed on the basis of a 360-day year comprised of twelve
30-day months.
The Issuer shall pay interest on overdue principal (including, without
limitation, post petition interest in a proceeding under any Bankruptcy Law),
and overdue interest, to the extent lawful, at the same rate PER ANNUM borne by
the Notes.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer shall maintain in the Borough of Manhattan, The City of New
York, the office or agency required under Section 2.03 (which may be an office
of the Trustee or an affiliate of the Trustee or Registrar). The Issuer shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.02.
The Issuer 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
Issuer 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 Issuer hereby initially designates U.S. Bank, National Association,
located at 100 Wall Street, Suite 1600, New York, New York 10005, Lobby Level,
Attn: Corporate Trust, as such office of the Issuer in accordance with Section
2.03.
SECTION 4.03. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five, the Issuer shall do or
cause to be done all things reasonably necessary to preserve and keep in full
force and effect its corporate existence and the corporate, partnership or other
existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of each such Restricted Subsidiary and the
material rights (charter and statutory) and material franchises of the Issuer
and each of its Restricted Subsidiaries; PROVIDED, HOWEVER, that the Issuer
shall not be required to preserve any such right, franchise or corporate
existence with respect to itself or any Restricted Subsidiary, if
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the loss thereof would not, individually or in the aggregate, have a material
adverse effect on the Issuer and the Guarantors, taken as a whole.
SECTION 4.04. PAYMENT OF TAXES.
The Issuer and the Guarantors shall, and shall cause each of the
Restricted Subsidiaries to, pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon it or any of the Restricted
Subsidiaries or upon the income, profits or property of it or any of the
Restricted Subsidiaries and (b) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a liability or Lien
upon the property of it or any of the Restricted Subsidiaries which would
reasonably be expected to have a material adverse effect on the Issuer and the
Guarantors taken as a whole; PROVIDED, HOWEVER, that the Issuer and the
Guarantors shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount the
applicability or validity is being contested in good faith by appropriate
actions and for which appropriate provision has been made, or any such tax,
assessment, charge or claim that would not reasonably be expected to have a
material adverse effect on the Issuer and the Guarantors taken as a whole.
SECTION 4.05. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Issuer shall cause all material properties owned by or leased by it
or any of its Restricted Subsidiaries used or useful to the conduct of its
business or the business of any of its Restricted Subsidiaries to be maintained
and kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all repairs, renewals,
replacements, and betterments thereof, all as in its judgment may be necessary,
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section 4.05 shall prevent the Issuer or any of its Restricted Subsidiaries from
discontinuing the use, operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is desirable in the
conduct of the business of the Issuer or any such Restricted Subsidiary, and if
such discontinuance or disposal would not, individually or in the aggregate,
have a material adverse effect on the ability of the Issuer or the Guarantors to
perform each of their respective obligations hereunder; PROVIDED, FURTHER, that
nothing in this Section 4.05 shall prevent the Issuer or any of its Restricted
Subsidiaries from discontinuing or disposing of any properties to the extent
otherwise permitted by this Indenture.
SECTION 4.06. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Issuer shall deliver to the Trustee, within 120 days after
the close of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Issuer and its Subsidiaries has been made under the
supervision of the signing Officers with a view to determining whether the
Issuer and the Guarantors have kept, observed, performed and fulfilled their
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of such Officer's knowledge, the
Issuer and the Guarantors during such preceding fiscal year has kept, observed,
performed and fulfilled each and every such covenant and
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no Default occurred during such year and at the date of such certificate there
is no Default that has occurred and is continuing or, if such signers do know of
such Default, the certificate shall specify such Default and what action, if
any, the Issuer is taking or proposes to take with respect thereto. The
Officers' Certificate shall also notify the Trustee should the Issuer elect to
change the manner in which it fixes the fiscal year end.
(b) The Issuer shall deliver to the Trustee promptly and in any
event within seven days after any Officer of the Issuer becomes aware of the
occurrence of any Default an Officers' Certificate specifying the Default and
what action, if any, the Issuer is taking or proposes to take with respect
thereto.
SECTION 4.07. INTENTIONALLY OMITTED.
SECTION 4.08. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Issuer and each Guarantor covenants (to the extent permitted by
applicable law) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive such
Issuer or such Guarantor from paying all or any portion of the principal of
and/or interest on the Notes or the Note Guarantee of any such Guarantor as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture, and (to the
extent permitted by applicable law) each hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.09. CHANGE OF CONTROL.
Upon the occurrence of any Change of Control, each Holder of Notes will
have the right to require that the Issuer purchase that Holder's Notes pursuant
to a Change of Control Offer (the "CHANGE OF CONTROL OFFER"). In the Change of
Control Offer, the Issuer will offer to pay an amount in cash (the "CHANGE OF
CONTROL PURCHASE PRICE") equal to 101% of the principal amount of Notes to be
purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase. Within 30 days following any Change of Control, the Issuer will mail,
or cause to be mailed, a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to purchase
Notes on the date (the "CHANGE OF CONTROL PAYMENT DATE") specified in such
notice, which date shall be a Business Day no earlier than 30 days and no later
than 60 days from the date such notice is mailed, pursuant to the procedures
described below. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.09 and that all Notes tendered and not withdrawn will be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the Change of Control Payment Date;
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(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the second Business Day prior to
the Change of Control Payment Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered (equal to $1,000 or an integral multiple thereof).
On or before the Change of Control Payment Date, the Issuer will, to
the extent lawful:
(i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Change of Control Purchase Price in respect of all Notes or
portions thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Issuer.
The Paying Agent will promptly mail to each Holder of Notes so tendered
the Change of Control Purchase Price for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; PROVIDED that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof.
The Issuer will publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date.
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The Issuer will not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Issuer and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
The Issuer shall cause the Change of Control Offer to remain open for
at least 20 Business Days or for such longer period as may be required by law.
The Issuer will comply, and will cause any third party making a Change of
Control Offer to comply, with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with a Change of Control
Offer. To the extent the provisions of any applicable securities laws or
regulations conflict with the provisions of this Section 4.09, the Issuer will
not be deemed to have breached their obligations under this Section 4.09 by
virtue of complying with such laws or regulations.
SECTION 4.10. LIMITATIONS ON ADDITIONAL INDEBTEDNESS.
(a) The Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, incur any Indebtedness; PROVIDED that the
Issuer or any Guarantor may incur additional Indebtedness, and any Restricted
Subsidiary may incur Acquired Indebtedness, in each case, if, after giving
effect thereto, the Consolidated Interest Coverage Ratio would be at least 2.00
to 1.00 (the "COVERAGE RATIO EXCEPTION").
(b) Notwithstanding Section 4.10(a), each of the following shall
be permitted (the "PERMITTED INDEBTEDNESS"):
(1) Indebtedness of the Issuer or any Guarantor under the Credit
Facilities in an aggregate amount at any time outstanding not to exceed the
greater of (a) $250.0 million LESS, to the extent a permanent repayment
and/or commitment reduction is required thereunder as a result of such
application, the aggregate amount of Net Available Proceeds applied to
repayments under the Credit Facilities in accordance with Section 4.13
(PROVIDED that the amount under this clause (a) shall in no event be
reduced to below $65.0 million) and (b) the amount that is 2.5 times
Consolidated Cash Flow for the Four-Quarter Period;
(2) the Notes issued on the Issue Date and the Note Guarantees and
the Exchange Notes and the Note Guarantees in respect thereof to be issued
pursuant to the Registration Rights Agreement;
(3) Indebtedness of the Issuer and the Restricted Subsidiaries to
the extent outstanding on the Issue Date (other than Indebtedness referred
to in clauses (1) and (2) above, and after giving effect to the intended
use of proceeds of the Notes);
(4) Indebtedness under Hedging Obligations of the Company or any
Restricted Subsidiary not for the purpose of speculation; PROVIDED that if
such Hedging Obligations are of the type described in clause (1) of the
definition thereof, (a) such Hedging
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Obligations relate to payment obligations on Indebtedness otherwise
permitted to be incurred by this Section 4.10, and (b) the notional
principal amount of such Hedging Obligations at the time incurred does not
exceed the principal amount of the Indebtedness to which such Hedging
Obligations relate;
(5) Indebtedness of the Issuer owed to a Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary owed to the Issuer or any other
Restricted Subsidiary; PROVIDED, HOWEVER, that upon any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or such Indebtedness being
owed to any Person other than the Issuer or a Restricted Subsidiary, the
Issuer or such Restricted Subsidiary, as applicable, shall be deemed to
have incurred Indebtedness not permitted by this clause (5);
(6) Indebtedness in respect of bid, performance, surety bonds and
workers' compensation claims, self-insurance obligations and bankers
acceptances issued for the account of the Issuer or any Restricted
Subsidiary in the ordinary course of business, including guarantees or
obligations of the Issuer or any Restricted Subsidiary with respect to
letters of credit supporting such bid, performance, surety bonds and
workers' compensation claims, self-insurance obligations and bankers
acceptances;
(7) Purchase Money Indebtedness incurred by the Issuer or any
Restricted Subsidiary, and Refinancing Indebtedness thereof, in an
aggregate amount not to exceed at any time outstanding $25.0 million;
(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; PROVIDED, HOWEVER, that such
Indebtedness is extinguished within five Business Days of incurrence;
(9) Indebtedness arising in connection with endorsement of
instruments for deposit in the ordinary course of business;
(10) Refinancing Indebtedness with respect to Indebtedness incurred
pursuant to the Coverage Ratio Exception, clause (2), (3), (11)(B) or
(13)(B) of this Section 4.10(b) or this clause (10);
(11) (A) Acquired Indebtedness of the Issuer or any Restricted
Subsidiary, and Refinancing Indebtedness thereof, in an aggregate amount
not to exceed $20.0 million at any time outstanding and (B) Acquired
Indebtedness of the Issuer or any Restricted Subsidiary assumed or acquired
in connection with a transaction governed by, and effected in accordance
with, Section 5.01(a);
(12) indemnification, adjustment of purchase price, earn-out or
similar obligations, in each case, incurred or assumed in connection with
the acquisition or disposition of any business or assets of the Issuer or
any Restricted Subsidiary or Equity Interests of a Restricted Subsidiary,
other than guarantees of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or Capital Stock for the purpose of
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financing any such acquisition; PROVIDED that the maximum aggregate
liability in respect of all such obligations outstanding under this clause
(12) shall at no time exceed (a) in the case of an acquisition, $10.0
million (PROVIDED that the amount of such liability shall be deemed to be
the amount thereof, if any, reflected on the balance sheet of the Issuer or
any Restricted Subsidiary (E.G., the amount of such liability shall be
deemed to be zero if no amount is reflected on such balance sheet)) and (b)
in the case of a disposition, the gross proceeds actually received by the
Issuer and the Restricted Subsidiaries in connection with such disposition;
(13) (A) Indebtedness of Foreign Subsidiaries in an aggregate
amount not to exceed $30.0 million at any time outstanding and (B)
Indebtedness of Foreign Subsidiaries if, after giving effect thereto the
Consolidated Interest Coverage Ratio (with the references to the Issuer and
the Restricted Subsidiaries in the definitions used in the calculation
thereof being to Foreign Subsidiaries (other than Unrestricted
Subsidiaries)) of all Foreign Subsidiaries would be at least 2.00 to 1.00;
PROVIDED that Indebtedness under this clause (13) may be incurred under any
Credit Facility;
(14) Indebtedness of the Issuer or any Restricted Subsidiary
incurred in the ordinary course of business under guarantees of
Indebtedness of suppliers, licensees, franchisees or customers in an
aggregate amount, together with the aggregate amount of Investments under
clause (13) of the definition of "Permitted Investments," not to exceed
$5.0 million at any time outstanding; and
(15) Indebtedness of the Issuer or any Restricted Subsidiary in an
aggregate amount not to exceed $25.0 million at any time outstanding.
(c) For purposes of determining compliance with this Section 4.10,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (1) through (15)
above or is entitled to be incurred pursuant to the Coverage Ratio Exception,
the Issuer shall classify and may reclassify, in its sole discretion, such item
of Indebtedness and may divide, classify and reclassify such Indebtedness in
more than one of the types of Indebtedness described, except that Indebtedness
incurred under the Credit Facilities on the Issue Date shall be deemed to have
been incurred under clause (1) above. In addition, for purposes of determining
any particular amount of Indebtedness under this covenant, guarantees, Liens or
letter of credit obligations supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included so long as
incurred by a Person that could have incurred such Indebtedness.
SECTION 4.11. LIMITATIONS ON RESTRICTED PAYMENTS.
(a) The Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, make any Restricted Payment if at the
time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur
as a consequence thereof;
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(2) the Issuer cannot incur $1.00 of additional Indebtedness
pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the
aggregate amount of all other Restricted Payments made after the Issue Date
(other than Restricted Payments made pursuant to clause (2), (3), (4), (5),
(6), (7), (8) or (9) of Section 4.11(b)), exceeds the sum (the "RESTRICTED
PAYMENTS BASKET") of (without duplication):
(a) 50% of Consolidated Net Income for the period (taken
as one accounting period) commencing on the first day of the fiscal
quarter in which the Issue Date occurs to and including the last day of
the fiscal quarter ended immediately prior to the date of such
calculation for which consolidated financial statements are available
(or, if such Consolidated Net Income shall be a deficit, minus 100% of
such aggregate deficit), PLUS
(b) 100% of the aggregate net cash proceeds received by
the Issuer and 100% of the Fair Market Value at the time of receipt of
assets other than cash, if any, received by the Issuer, either (x) as
contributions to the common equity of the Issuer after the Issue Date
or (y) from the issuance and sale of Qualified Equity Interests after
the Issue Date, other than (A) any such proceeds which are used to
redeem Notes in accordance with Section 6(a) of the Notes or (B) any
such proceeds or assets received from a Subsidiary of the Issuer, PLUS
(c) the aggregate amount by which Indebtedness (other
than any Subordinated Indebtedness) incurred by the Issuer or any
Restricted Subsidiary subsequent to the Issue Date is reduced on the
Issuer's balance sheet upon the conversion or exchange (other than by a
Subsidiary of the Issuer) into Qualified Equity Interests (less the
amount of any cash, or the fair value of assets, distributed by the
Issuer or any Restricted Subsidiary upon such conversion or exchange),
PLUS
(d) in the case of the disposition or repayment of or
return on any Investment that was treated as a Restricted Payment made
after the Issue Date, an amount (to the extent not included in the
computation of Consolidated Net Income) equal to the lesser of (i) 100%
of the aggregate amount received by the Issuer or any Restricted
Subsidiary in cash or other property (valued at the Fair Market Value
thereof) as the return of capital with respect to such Investment and
(ii) the amount of such Investment that was treated as a Restricted
Payment, PLUS
(e) upon a Redesignation of an Unrestricted Subsidiary as
a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the
Issuer's proportionate interest in such Subsidiary immediately
following such Redesignation, and (ii) the aggregate amount of the
Issuer's Investments in such Subsidiary to the extent such Investments
reduced the Restricted Payments Basket and were not previously repaid
or otherwise reduced.
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(b) The foregoing provisions will not prohibit:
(1) the payment by the Issuer or any Restricted
Subsidiary of any dividend within 60 days after the date of declaration
thereof, if on the date of declaration the payment would have complied
with the provisions of this Indenture;
(2) the redemption of any Equity Interests of the Issuer
or any Restricted Subsidiary in exchange for, or out of the proceeds of
the substantially concurrent issuance and sale of, Qualified Equity
Interests;
(3) the redemption of Subordinated Indebtedness of the
Issuer or any Restricted Subsidiary (a) in exchange for, or out of the
proceeds of the substantially concurrent issuance and sale of,
Qualified Equity Interests, (b) in exchange for, or out of the proceeds
of the substantially concurrent incurrence of, Refinancing Indebtedness
permitted to be incurred under Section 4.10 and the other terms of this
Indenture or (c) upon a Change of Control or in connection with an
Asset Sale to the extent required by the agreement governing such
Subordinated Indebtedness but only if the Issuer shall have complied
with Section 4.09 and Section 4.13 and purchased all Notes validly
tendered pursuant to the relevant offer prior to redeeming such
Subordinated Indebtedness;
(4) payments by the Issuer or to Parent to permit Parent
or Holdings, and which are used by Parent or Holdings, to redeem Equity
Interests of the Issuer, Parent or Holdings held by officers, directors
or employees or former officers, directors or employees (or their
transferees, estates or beneficiaries under their estates), upon their
death, disability, retirement, severance or termination of employment
or service; PROVIDED that the aggregate cash consideration paid for all
such redemptions shall not exceed the sum of (A) $5.0 million during
any calendar year (with unused amounts being available to be used in
the following calendar year, but not in any succeeding calendar year)
plus (B) the amount of any net cash proceeds received by or contributed
to the Issuer from the issuance and sale after the Issue Date of
Qualified Equity Interests of Holdings, Parent or the Issuer to its
officers, directors or employees that have not been applied to the
payment of Restricted Payments pursuant to this clause (4), plus (C)
the net cash proceeds of any "key-man" life insurance policies that
have not been applied to the payment of Restricted Payments pursuant to
this clause (4);
(5) payments to Parent permitted pursuant to clauses (3)
and (4) of Section 4.14(b);
(6) repurchases of Equity Interests deemed to occur upon
the exercise of stock options if the Equity Interests represent a
portion of the exercise price thereof;
(7) to the extent that the Net Available Proceeds
(without duplication of any amount that increased the Restricted
Payments Basket) of any Permitted Sale and Leaseback Transaction exceed
the Permitted Sale and Leaseback Transaction Amount, payments of such
excess amount to Parent to permit Parent or Holdings, and the
subsequent use of such payments by Parent or Holdings, to pay a
dividend to the holders of Equity
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Interests of Parent or Holdings or a distribution to the holders of
Indebtedness of Parent or Holdings;
(8) distributions to Parent in order to enable Parent or
Holdings to pay customary and reasonable costs and expenses of an
offering of securities of Parent or Holdings that is not consummated;
or
(9) additional Restricted Payments of $20.0 million;
PROVIDED that (a) in the case of any Restricted Payment pursuant to clause
(3)(c) or (7) above, no Default shall have occurred and be continuing or occur
as a consequence thereof and (b) no issuance and sale of Qualified Equity
Interests pursuant to clause (2), (3) or (4)(B) above shall increase the
Restricted Payments Basket.
SECTION 4.12. LIMITATIONS ON LIENS.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or permit or suffer to exist
any Lien of any nature whatsoever against any assets of the Issuer or any
Restricted Subsidiary (including Equity Interests of a Restricted Subsidiary),
whether owned at the Issue Date or thereafter acquired, or any proceeds
therefrom, or assign or otherwise convey any right to receive income or profits
therefrom securing any Indebtedness (other than Permitted Liens), unless
contemporaneously therewith:
(1) in the case of any Lien securing an obligation that ranks PARI
PASSU with the Notes or a Note Guarantee, effective provision is made to
secure the Notes or such Note Guarantee, as the case may be, at least
equally and ratably with or prior to such obligation with a Lien on the
same collateral; and
(2) in the case of any Lien securing an obligation that is
subordinated in right of payment to the Notes or a Note Guarantee,
effective provision is made to secure the Notes or such Note Guarantee, as
the case may be, with a Lien on the same collateral that is prior to the
Lien securing such subordinated obligation,
in each case, for so long as such obligation is secured by such Lien.
SECTION 4.13. LIMITATIONS ON ASSET SALES.
(a) The Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale (other than a
Permitted Sale and Leaseback Transaction) unless:
(1) the Issuer 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; and
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(2) either (x) at least 75% of the total consideration received in
such Asset Sale consists of cash or Cash Equivalents or (y) the cash or
Cash Equivalents portion (without giving effect to Section 4.13(b)(3)) of
the total consideration received in such Asset Sale shall be no less than
an amount equal to the product of (A) 5.25 and (B) the portion of
Consolidated Cash Flow for the Four-Quarter Period directly attributable to
the assets included in such Asset Sale.
(b) For purposes of clause (2) of Section 4.13(a), the following
shall be deemed to be cash:
(1) the amount (without duplication) of any Indebtedness (other
than Subordinated Indebtedness) of the Issuer or such Restricted Subsidiary
that is expressly assumed by the transferee in such Asset Sale and with
respect to which the Issuer or such Restricted Subsidiary, as the case may
be, is unconditionally released by the holder of such Indebtedness,
(2) the amount of any obligations received from such transferee
that are within 90 days converted by the Issuer or such Restricted
Subsidiary to cash (to the extent of the cash actually so received), and
(3) the Fair Market Value of (i) any assets (other than
securities) received by the Issuer or any Restricted Subsidiary to be used
by it in the Permitted Business, (ii) Equity Interests in a Person that is
a Restricted Subsidiary or in a Person engaged in a Permitted Business that
shall become a Restricted Subsidiary immediately upon the acquisition of
such Person by the Issuer or (iii) a combination of (i) and (ii).
(c) If at any time any non-cash consideration received by the
Issuer or any Restricted Subsidiary, as the case may be, pursuant to Section
4.1(b)(2) above in connection with any Asset Sale is repaid or 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 repayment,
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 4.13.
(d) If the Issuer or any Restricted Subsidiary engages in an Asset
Sale (other than a Permitted Sale and Leaseback Transaction), the Issuer or such
Restricted Subsidiary shall, by no later than 12 months following the later of
the consummation thereof and the Issuer's or Restricted Subsidiary's receipt of
the Net Available Proceeds, have applied all or any of the Net Available
Proceeds therefrom to:
(1) repay Senior Debt or Guarantor Senior Debt, and in the case of
any such repayment under any revolving credit facility, effect a permanent
reduction in the availability under such revolving credit facility;
(2) repay any Indebtedness which was secured by the assets sold in
such Asset Sale; and/or
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(3) (A) invest in the purchase of assets (other than securities)
to be used by the Issuer or any Restricted Subsidiary in the Permitted
Business, (B) acquire Equity Interests in a Person that is a Restricted
Subsidiary or in a Person engaged in a Permitted Business that shall become
a Restricted Subsidiary immediately upon the consummation of such
acquisition or (C) a combination of (A) and (B); PROVIDED that the Issuer
or such Restricted Subsidiary shall be deemed to have applied Net Available
Proceeds in accordance with this clause (3) within such 12-month period if,
within such 12-month period, it has entered into a binding commitment or
agreement to invest such Net Available Proceeds and continues to use all
reasonable efforts to so apply such Net Available Proceeds as soon as
practicable thereafter; PROVIDED, FURTHER, that upon any abandonment or
termination of such commitment or agreement, the Net Available Proceeds not
applied will constitute Excess Proceeds (as defined below). In addition,
following the entering into of a binding agreement with respect to an Asset
Sale and prior to the consummation thereof, cash (whether or not actual Net
Available Proceeds of such Asset Sale) used for the purposes described in
subclause (A), (B) and (C) of this clause (3) that are designated as uses
in accordance with this clause (3), and not previously or subsequently so
designated in respect of any other Asset Sale, shall be deemed to be Net
Available Proceeds applied in accordance with this clause (3).
The amount of Net Available Proceeds not applied or invested as provided in this
Section 4.13(d) will constitute "EXCESS PROCEEDS."
(e) When the aggregate amount of Excess Proceeds equals or exceeds
$15.0 million, the Issuer will be required to make an offer to purchase from all
Holders and, if applicable, redeem (or make an offer to do so) any Pari Passu
Indebtedness of the Issuer the provisions of which require the Issuer to redeem
such Indebtedness with the proceeds from any Asset Sales (or offer to do so), in
an aggregate principal amount of Notes and such Pari Passu Indebtedness equal to
the amount of such Excess Proceeds as follows:
(1) the Issuer will (a) make an offer to purchase (a "NET PROCEEDS
OFFER") to all Holders in accordance with the procedures set forth in this
Indenture, and (b) redeem (or make an offer to do so) any such other Pari
Passu Indebtedness, pro rata in proportion to the respective principal
amounts of the Notes and such other Indebtedness required to be redeemed,
the maximum principal amount of Notes and Pari Passu Indebtedness that may
be redeemed out of the amount (the "PAYMENT AMOUNT") of such Excess
Proceeds;
(2) 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 thereon, if any,
to the date such Net Proceeds Offer is consummated (the "OFFERED PRICE"),
in accordance with the procedures set forth in this Indenture and the
Redemption Price for such Pari Passu Indebtedness (the "PARI PASSU
INDEBTEDNESS PRICE") shall be as set forth in the related documentation
governing such Indebtedness;
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(3) if the aggregate Offered Price of Notes validly tendered and
not withdrawn by Holders thereof exceeds the PRO RATA portion of the
Payment Amount allocable to the Notes, Notes to be purchased will be
selected on a PRO RATA basis; and
(4) 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.
(f) To the extent that the sum of the aggregate Offered Price of
Notes tendered pursuant to a Net Proceeds Offer and the aggregate Pari Passu
Indebtedness Price paid to the holders of such Pari Passu Indebtedness is less
than the Payment Amount relating thereto (such shortfall constituting a "NET
PROCEEDS DEFICIENCY"), the Issuer may use the Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the provisions of
this Indenture.
(g) In the event of the transfer of substantially all (but not
all) of the assets of the Issuer and the Restricted Subsidiaries as an entirety
to a Person in a transaction covered by and effected in accordance with Article
Five other than a transaction meeting the requirements of Section 5.01(a)(3)(b),
the successor shall be deemed to have sold for cash at Fair Market Value the
assets of the Issuer and the Restricted Subsidiaries not so transferred for
purposes of this Section 4.13, and shall comply with the provisions of this
Section 4.13 with respect to such deemed sale as if it were an Asset Sale (with
such Fair Market Value being deemed to be Net Available Proceeds for such
purpose).
(h) Upon the commencement of a Net Proceeds Offer, the Issuer
shall send, by first class mail, a notice to the Trustee and to each Holder at
is registered address. The notice shall contain all instructions and materials
necessary to enable such Holder to tender Notes pursuant to the Net Proceeds
Offer. Any Net Proceeds Offer shall be made to all Holders. The notice, which
shall govern the terms of the Net Proceeds Offer, shall state:
(1) that the Net Proceeds Offer is being made pursuant to this
Section;
(2) the Payment Amount, the Offered Price, and the date on which
Notes tendered and accepted for payment shall be purchased, which date
shall be at least 30 days and not later than 60 days from the date such
notices is mailed (the "NET PROCEEDS PAYMENT DATE");
(3) that any Notes not tendered or accepted for payment shall
continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any
Notes accepted for payment pursuant to the Net Proceeds Offer shall cease
to accrue interest on and after the Net Proceeds Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to
any Net Proceeds Offer shall be required to surrender the Notes, with the
form entitled "Option of
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Holder to Elect Purchase" on the reverse of the Note completed, or transfer
by book-entry transfer, to the Issuer, a depository, if appointed by the
Issuer, or the Paying Agent at the address specified in the notice at least
three days before the Net Proceeds Payment Date;
(6) that Holders shall be entitled to withdraw their election if
the Issuer, the Depository or the Paying Agent, as the case may be,
receives, not later than the Net Proceeds Payment Date, a notice setting
forth the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;
(7) that if the aggregate principal amount of Notes surrendered by
Holders exceeds the Payment Amount, the Issuer shall select the Notes to be
purchased on a PRO RATA basis (with such adjustments as may be deemed
appropriate by the Issuer so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry).
(i) On the Net Proceeds Payment Date, the Issuer shall, to the
extent lawful: (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Net Proceeds Offer, subject to pro ration if the
aggregate Notes tendered exceed the Payment Amount allocable to the Notes; (2)
deposit with the Paying Agent U.S. Legal Tender equal to the lesser of the
Payment Amount allocable to the Notes and the amount sufficient to pay the
Offered Price in respect of all Notes or portions thereof so tendered; and (3)
deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being repurchased by the Issuer. The Issuer shall publicly
announce the results of the Net Proceeds Offer on the Net Proceeds Payment Date.
(j) The Paying Agent shall promptly mail to each Holder of Notes
so tendered the Offered Price for such Notes, and the Trustee shall promptly
authenticate pursuant to an Authentication Order and mail (or cause to be
transferred by book-entry) to each Holder a new Note equal in principal amount
to any unrepurchased portion of the Notes surrendered, if any; PROVIDED that
each such new Note shall be in principal amount of $1,000 or an integral
multiple thereof. However, if the Net Proceeds Payment Date is on or after an
interest record date and on or before the related Interest Payment Date, any
accrued and unpaid interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Net
Proceeds Offer.
(k) The Issuer will comply with 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 Net Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Sec-
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tion 4.13, the Issuer shall comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
Section 4.13 by virtue of this compliance.
SECTION 4.14. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
(a) The Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, in one transaction or a series of related
transactions, sell, lease, transfer or otherwise dispose of any of its assets
to, or purchase any assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (an "AFFILIATE TRANSACTION"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Issuer or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction at such time on
an arm's-length basis by the Issuer or that Restricted Subsidiary from a
Person that is not an Affiliate of the Issuer or that Restricted
Subsidiary; and
(2) the Issuer delivers to the Trustee:
(x) with respect to any Affiliate Transaction involving
aggregate value in excess of $5.0 million, an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (1)
above and (x) a Secretary's Certificate which sets forth and
authenticates a resolution that has been adopted by a majority of the
directors of the Issuer who are disinterested with respect to such
Affiliate Transaction, approving such Affiliate Transaction or (y) if
there are no such disinterested directors, a written opinion described
in clause (y) below; and
(y) with respect to any Affiliate Transaction involving
aggregate value of $20.0 million or more, the certificates described in
the preceding clause (x) and a written opinion as to the fairness of
such Affiliate Transaction to the Issuer or such Restricted Subsidiary
from a financial point of view issued by an Independent Financial
Advisor to the Board of Directors of the Issuer.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among (a) the Issuer and
one or more Restricted Subsidiaries or (b) Restricted Subsidiaries;
PROVIDED, in each case, that no Affiliate of the Issuer (other than another
Restricted Subsidiary) owns Equity Interests of any such Restricted
Subsidiary;
(2) reasonable director, officer and employee compensation
(including bonuses) and other benefits (including retirement, health, stock
option and other benefit plans), indemnification arrangements,
compensation, employment and severance agreements, in each case approved by
the Board of Directors;
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(3) the entering into of a tax sharing agreement, or payments
pursuant thereto, between the Issuer and/or one or more Subsidiaries, on
the one hand, and any other Person with which the Issuer or such
Subsidiaries are required or permitted to file a consolidated tax return or
with which the Issuer or such Subsidiaries are part of a consolidated group
for tax purposes, on the other hand, which payments by the Issuer and the
Restricted Subsidiaries are not in excess of the tax liabilities that would
have been payable by them on a stand-alone basis;
(4) payments by the Issuer to or on behalf of Parent in an amount
sufficient to pay out-of-pocket legal, accounting and filing and other
general corporate overhead costs of Parent actually incurred by Parent, in
any case in an aggregate amount not to exceed $500,000 in any calendar
year;
(5) loans and advances permitted by clause (3) of the definition
of "Permitted Investments";
(6) payments to Sponsor or an Affiliate or Related Party thereof
in respect of management and consulting services rendered to the Issuer and
the Restricted Subsidiaries in the amounts and at the times specified or
permitted in the Advisory Agreement, as in effect on the Issue Date or as
thereafter amended or replaced in any manner, that, taken as a whole, is
not more adverse to the interests of the Holders in any material respect
than such agreement as it was in effect on the Issue Date; PROVIDED that no
Default described in Section 6.01(1), (2), (3), (7) or (8) shall have
occurred and be continuing or occur as a consequence thereof;
(7) any Restricted Payments which are made in accordance with
Section 4.11;
(8) entering into an agreement that provides registration rights
to the shareholders of the Issuer, Parent or Holdings or amending any such
agreement with shareholders of the Issuer, Parent or Holdings and the
performance of such agreements;
(9) any transaction with a joint venture or similar entity which
would constitute an Affiliate Transaction solely because the Issuer or a
Restricted Subsidiary owns an equity interest in or otherwise controls such
joint venture or similar entity; PROVIDED that no Affiliate of the Issuer
or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary
shall have a beneficial interest in such joint venture or similar entity;
(10) any merger, consolidation or reorganization of the Issuer with
an Affiliate, solely for the purposes of (a) reorganizing to facilitate an
initial public offering of securities of the Issuer, Parent, Holdings or
other holding company, (b) forming a holding company or (c) reincorporating
the Issuer in a new jurisdiction;
(11) (a) any transaction with an Affiliate where the only
consideration paid by the Issuer or any Restricted Subsidiary is Qualified
Equity Interests or (b) the issuance or sale of any Qualified Equity
Interests;
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(12) (a) any agreement in effect on the Issue Date (other than the
Advisory Agreement) and disclosed in the Offering Memorandum, as in effect
on the Issue Date or as thereafter amended or replaced in any manner, that,
taken as a whole, is not more adverse to the interests of the Holders in
any material respect than such agreement as it was in effect on the Issue
Date or (b) any transaction pursuant to any agreement referred to in the
immediately preceding clause (a); or
(13) any Investment in an Unrestricted Subsidiary; PROVIDED that no
Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or
a Restricted Subsidiary shall have a beneficial interest in such
Unrestricted Subsidiary.
SECTION 4.15. LIMITATIONS ON DIVIDEND AND OTHER RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
The Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or consensual restriction on the ability of
any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on or in respect
of its Equity Interests;
(b) make loans or advances or pay any Indebtedness or other
obligation owed to the Issuer or any other Restricted Subsidiary; or
(c) transfer any of its assets to the Issuer or any other
Restricted Subsidiary;
except for:
(1) encumbrances or restrictions existing under or by reason of
applicable law, regulation or order;
(2) encumbrances or restrictions existing under this Indenture,
the Notes and the Note Guarantees;
(3) non-assignment provisions of any contract or any lease entered
into in the ordinary course of business;
(4) encumbrances or restrictions existing under agreements
existing on the date of this Indenture (including, without limitation, the
Credit Facilities) as in effect on that date;
(5) restrictions relating to any Lien permitted under this
Indenture imposed by the holder of such Lien;
(6) restrictions imposed under any agreement to sell assets
permitted under this Indenture to any Person pending the closing of such
sale;
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(7) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the properties
or assets of the Person so acquired;
(8) any other agreement governing Indebtedness entered into after
the Issue Date that contains encumbrances and restrictions that are not
materially more restrictive with respect to any Restricted Subsidiary than
those in effect on the Issue Date with respect to that Restricted
Subsidiary pursuant to agreements in effect on the Issue Date;
(9) customary provisions in partnership agreements, limited
liability company organizational governance documents, joint venture, asset
sale and stock sale agreements and other similar agreements entered into in
the ordinary course of business that restrict the transfer of ownership
interests in such partnership, limited liability company, joint venture or
similar Person;
(10) Purchase Money Indebtedness incurred in compliance with
Section 4.10 that impose restrictions of the nature described in clause (c)
above on the assets acquired;
(11) restrictions on cash or other deposits or net worth imposed by
suppliers or landlords under contracts entered into in the ordinary course
of business;
(12) encumbrances or restrictions contained in security agreements
or mortgages securing Indebtedness of a Restricted Subsidiary to the extent
such encumbrances or restrictions restrict the transfer of assets subject
to such security agreements or mortgages;
(13) encumbrances or restrictions contained in Indebtedness of
Foreign Subsidiaries, or municipal loan or related agreements entered into
in connection with the incurrence of industrial revenue bonds, permitted to
be incurred under this Indenture; PROVIDED that any such encumbrances or
restrictions are ordinary and customary with respect to the type of
Indebtedness being incurred under the relevant circumstances and do not, in
the good faith judgment of the Board of Directors of the Issuer, materially
impair the Issuer's ability to make payment on the Notes when due; and
(14) any encumbrances or restrictions imposed by any amendments or
refinancings of the contracts, instruments or obligations referred to in
clauses (1) through (13) above; PROVIDED that such amendments or
refinancings are no more materially restrictive with respect to such
encumbrances and restrictions than those prior to such amendment or
refinancing.
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SECTION 4.16. ADDITIONAL NOTE GUARANTEES.
(a) If, after the Issue Date, (a) any Restricted Subsidiary
(including any newly formed, newly acquired or newly Designated Restricted
Subsidiary) guarantees any Indebtedness under any Credit Facility (other than
any Foreign Subsidiary that guarantees Indebtedness of only other Foreign
Subsidiaries under any such Credit Facility) or (b) the Issuer otherwise elects
to have any Restricted Subsidiary become a Guarantor, then, in each such case,
the Issuer shall cause such Restricted Subsidiary to:
(1) execute and deliver to the Trustee (a) a supplemental
indenture in form and substance reasonably satisfactory to the Trustee
pursuant to which such Restricted Subsidiary shall unconditionally
guarantee all of the Issuer's obligations under the Notes and this
Indenture and (b) a notation of guarantee in respect of its Note Guarantee;
and
(2) deliver to the Trustee one or more opinions of counsel that
such supplemental indenture (a) has been duly authorized, executed and
delivered by such Restricted Subsidiary and (b) constitutes a valid and
legally binding obligation of such Restricted Subsidiary in accordance with
its terms.
Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of
this Indenture.
(b) Notwithstanding Section 4.16(a), a Subsidiary Guarantor will
be automatically and unconditionally released and discharged from its
obligations under its Note Guarantee, this Indenture and the Registration Rights
Agreement under the circumstances set forth in Section 11.05. The form of the
Note Guarantee is attached hereto as EXHIBIT F.
SECTION 4.17. LIMITATIONS ON LAYERING INDEBTEDNESS.
The Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, incur or suffer to exist any Indebtedness that is or
purports to be by its terms (or by the terms of any agreement governing such
Indebtedness) senior in right of payment to the Notes or the Note Guarantee of
such Restricted Subsidiary and subordinated in right of payment to any other
Indebtedness of the Issuer or of such Restricted Subsidiary, as the case may be.
For purposes of the foregoing, no Indebtedness will be deemed to be
subordinated in right of payment to any other Indebtedness of the Issuer or any
Restricted Subsidiary solely by virtue of being unsecured or secured by a junior
priority lien or by virtue of the fact that the holders of such Indebtedness
have entered into intercreditor agreements or other arrangements giving one or
more of such holders priority over the other holders in the collateral held by
them.
SECTION 4.18. REPORTS TO HOLDERS.
Whether or not required by the SEC, so long as any Notes are
outstanding, the Issuer will furnish to the Holders of Notes, or file
electronically with the SEC through the SEC's Electronic Data Gathering,
Analysis and Retrieval System (or any successor system), within the
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time periods that would be applicable to the Issuer if it were subject to
Section 13(a) or 15(d) of the Exchange Act:
(1) all quarterly and annual financial and other information that
would be required to be contained in a filing with the SEC on Forms 10-Q
and 10-K if the Issuer were required to file these Forms; and
(2) all current reports that would be required to be filed with
the SEC on Form 8-K if the Issuer were required to file these reports.
In addition, whether or not required by the SEC, the Issuer will file a
copy of all of the information and reports referred to in clauses (1) and (2)
above with the SEC for public availability within the time periods specified in
the SEC's rules and regulations (unless the SEC will not accept the filing) and
make the information available to securities analysts and prospective investors
upon request.
Notwithstanding anything to the contrary, the Issuer will be deemed to
have complied with its obligations in the preceding two paragraphs following the
filing of the Exchange Offer Registration Statement and prior to the
effectiveness thereof if the Exchange Offer Registration Statement includes the
information specified in clause (1) above at the times it would otherwise be
required to file such Forms. If Parent has complied with the reporting
requirements of Section 13 or 15(d) of the Exchange Act, if applicable, and has
furnished the Holders of Notes, or filed electronically with the SEC's
Electronic Data Gathering, Analysis and Retrieval System (or any successor
system), the reports described herein with respect to Parent (including any
financial information required by Regulation S-X relating to the Issuer and the
Subsidiary Guarantors), the Issuer shall be deemed to be in compliance with the
provisions of this Section 4.18.
The Issuer and the Guarantors have agreed that, for so long as any
Notes remain outstanding, the Issuer will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.19. LIMITATIONS ON DESIGNATION OF UNRESTRICTED SUBSIDIARIES.
(a) The Issuer may designate any Subsidiary (including any newly
formed or newly acquired Subsidiary) of the Issuer as an "Unrestricted
Subsidiary" under this Indenture (a "DESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time
of or after giving effect to such Designation; and
(2) either (A) the Subsidiary to be so Designated has total assets
of $1,000 or less; or (B) the Issuer would be permitted to make, at the
time of such Designation, (x) a Permitted Investment or (y) an Investment
pursuant to Section 4.11(a), in either case, in an amount (the "DESIGNATION
AMOUNT") equal to the Fair Market Value of the Issuer's proportionate
interest in such Subsidiary on such date.
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(b) No Subsidiary shall be Designated as an "Unrestricted
Subsidiary" if such Subsidiary or any of its Subsidiaries owns (i) any Equity
Interests (other than Qualified Equity Interests) of the Issuer or (ii) any
Equity Interests of any Restricted Subsidiary that is not a Subsidiary of the
Subsidiary to be so Designated.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the
requirements of Section 4.19(a) and (b) as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of the Subsidiary and any Liens on assets of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of the
date and, if the Indebtedness is not permitted to be incurred under Section 4.10
or the Lien is not permitted under Section 4.12, the Issuer shall be in default
of the applicable section.
(d) The Issuer may redesignate an Unrestricted Subsidiary as a
Restricted Subsidiary (a "REDESIGNATION") only if:
(1) no Default shall have occurred and be continuing at the time
of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted
Subsidiary outstanding immediately following such Redesignation would, if
incurred or made at such time, have been permitted to be incurred or made
for all purposes of this Indenture.
(e) All Designations and Redesignations must be evidenced by
resolutions of the Board of Directors of the Issuer, delivered to the Trustee,
certifying compliance with the foregoing provisions.
SECTION 4.20. LIMITATION ON THE ISSUANCE OR SALE OF EQUITY INTERESTS OF
RESTRICTED SUBSIDIARIES.
The Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, sell or issue any shares of Equity Interests of any
Restricted Subsidiary except (1) to the Issuer, a Restricted Subsidiary or the
minority stockholders of any Restricted Subsidiary, on a PRO RATA basis, (2) to
the extent such shares represent directors' qualifying shares or shares required
by applicable law to be held by a Person other than the Issuer or a Wholly-Owned
Restricted Subsidiary, or (3) if immediately after giving effect to such sale or
issuance, such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary. The sale of all the Equity Interests of any Restricted Subsidiary is
permitted by this Section 4.20 but is subject to Section 4.13. Notwithstanding
the foregoing, this covenant shall not prohibit the issuance or sale of Equity
Interests of any Restricted Subsidiary in connection with (a) the formation or
capitalization of a Restricted Subsidiary or (b) a single transaction or a
series of substantially contemporaneous transactions whereby such Restricted
Subsidiary becomes a Restricted Subsidiary of the Issuer by reason of
acquisition of securities or assets from another Person; PROVIDED that following
the consummation of any transaction or transactions contemplated by clause (a)
or (b), the ownership of the Equity Interests of the relevant Restricted
Subsidiary or Restricted Subsidiaries shall be as if this covenant had been
complied with at all times.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. MERGERS, CONSOLIDATIONS, ETC.
(a) The Issuer will not, directly or indirectly, in a single
transaction or a series of related transactions, (a) consolidate or merge with
or into another Person (other than a merger with an Affiliate solely for the
purpose of and with the effect of changing the Issuer's jurisdiction of
incorporation to another State of the United States or forming a holding company
for the Issuer), or sell, lease, transfer, convey or otherwise dispose of or
assign all or substantially all of the assets of the Issuer or the Issuer and
the Restricted Subsidiaries (taken as a whole) or (b) adopt a Plan of
Liquidation unless, in either case:
(1) either:
(a) the Issuer will be the surviving or continuing
Person; or
(b) the Person formed by or surviving such consolidation
or merger or to which such sale, lease, conveyance or other disposition
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, limited liability company or limited partnership organized
and existing under the laws of any State of the United States of
America or the District of Columbia, and the Successor expressly
assumes, by supplemental indenture in form and substance reasonably
satisfactory to the Trustee, all of the obligations of the Issuer under
the Notes, this Indenture and the Registration Rights Agreement;
(2) immediately prior to and immediately after giving effect to
such transaction and the assumption of the obligations as set forth in
clause (1)(b) 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, no Default shall have occurred and be continuing; and
(3) immediately after and giving effect to such transaction and
the assumption of the obligations set forth in clause (1)(b) 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, (a) the Issuer
or the Successor, as the case may be, could incur $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception or (b) the
Consolidated Interest Coverage Ratio of the Issuer or the Successor, as the
case may be, would be not less than the Consolidated Coverage Ratio of the
Issuer immediately prior to such transaction.
For purposes of this Section 5.01(a), any Indebtedness of the Successor which
was not Indebtedness of the Issuer immediately prior to the transaction shall be
deemed to have been incurred in connection with such transaction.
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(b) Parent will not, directly or indirectly, in a single
transaction or a series of related transactions, (a) consolidate or merge with
or into another Person, or sell, lease, transfer, convey or otherwise dispose of
or assign all or substantially all of the assets of Parent and its Subsidiaries
(taken as a whole) or (b) adopt a Plan of Liquidation unless, in either case:
(1) either:
(a) Parent will be the surviving or continuing Person; or
(b) the Person formed by or surviving such consolidation
or merger or to which such sale, lease, conveyance or other disposition
shall be made (or, in the case of a Plan of Liquidation, any Person to
which assets are transferred) (collectively, the "PARENT SUCCESSOR") is
a corporation, limited liability company or limited partnership
organized and existing under the laws of any State of the United States
of America or the District of Columbia, and the Parent Successor
(unless the Parent Successor is the Issuer) expressly assumes, by
supplemental indenture in form and substance reasonably satisfactory to
the Trustee, all of the obligations of Parent under the Notes, this
Indenture and the Registration Rights Agreement; and
(2) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
(c) Except as provided in Section 11.05 no Guarantor (other than
Parent) may consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person, unless:
(1) either:
(a) such Guarantor will be the surviving or continuing
Person; or
(b) the Person formed by or surviving any such
consolidation or merger assumes, by supplemental indenture in form and
substance reasonably satisfactory to the Trustee, all of the
obligations of such Guarantor under the Note Guarantee of such
Guarantor, this Indenture and the Registration Rights Agreement, and,
in the case of a consolidation or merger with Parent, is a corporation,
limited liability company or limited partnership organized and existing
under the laws of any State of the United States of America or the
District of Columbia; and
(2) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
(d) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, the Equity Interests of which constitute all
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or substantially all of the properties and assets of the Issuer, will be deemed
to be the transfer of all or substantially all of the properties and assets of
the Issuer or Parent, as the case may be.
(e) Upon any consolidation, combination or merger of the Issuer or
a Guarantor, or any transfer of all or substantially all of the assets of the
Issuer or Parent in accordance with the foregoing, in which the Issuer or such
Guarantor is not the continuing obligor under the Notes or its Note Guarantee,
the surviving entity formed by such consolidation or into which the Issuer or
such Guarantor is merged or the Person to which the conveyance, lease or
transfer is made will succeed to, and be substituted for, and may exercise every
right and power of, the Issuer or such Guarantor under this Indenture, the Notes
and the Note Guarantees with the same effect as if such surviving entity had
been named therein as the Issuer or such Guarantor and, except in the case of a
lease, the Issuer or such Guarantor, as the case may be, will be released from
the obligation to pay the principal of and interest on the Notes or in respect
of its Note Guarantee, as the case may be, and all of the Issuer's or such
Guarantor's other obligations and covenants under the Notes, this Indenture and
its Note Guarantee, if applicable.
(f) Notwithstanding the foregoing, any Restricted Subsidiary may
consolidate with, merge with or into or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to the Issuer or another Restricted Subsidiary.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following is an "EVENT OF DEFAULT":
(1) failure by the Issuer to pay interest on any of the Notes when
it becomes due and payable and the continuance of any such failure for 30
days (whether or not such payment is prohibited by the subordination
provisions of this Indenture);
(2) failure by the Issuer to pay the principal on any of the Notes
when it becomes due and payable, whether at Stated Maturity, upon
redemption, upon purchase, upon acceleration or otherwise (whether or not
such payment is prohibited by the subordination provisions of this
Indenture);
(3) failure by the Issuer to comply with Section 5.01 or in
respect of its obligations to make a Change of Control Offer as described
under Section 4.09 (whether or not such compliance is prohibited by the
subordination provisions of this Indenture);
(4) failure by the Issuer to comply with any other agreement or
covenant in this Indenture and continuance of this failure for 60 days
after notice of the failure has been given to the Issuer by the Trustee or
by the Holders of at least 25% of the aggregate principal amount of the
Notes then outstanding;
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(5) default under any mortgage, indenture or other instrument or
agreement under which there may be issued or by which there may be secured
or evidenced Indebtedness of the Issuer or any Restricted Subsidiary,
whether such Indebtedness now exists or is incurred after the Issue Date,
which default:
(a) is caused by a failure to pay at final maturity
(giving effect to any applicable grace periods and any extensions
thereof) principal on such Indebtedness within the applicable express
grace period,
(b) results in the acceleration of such Indebtedness
prior to its express final maturity or
(c) results in the judicial authorization to foreclose
upon, or to exercise remedies under applicable law or applicable
security documents to take ownership of, the assets securing such
Indebtedness, and
in each case, the principal amount of such Indebtedness, together with any other
Indebtedness with respect to which an event described in clause (a), (b) or (c)
has occurred and is continuing, aggregates $20.0 million or more;
(6) one or more judgments or orders that exceed $20.0 million in
the aggregate (net of amounts covered by insurance or bonded) for the
payment of money have been entered by a court or courts of competent
jurisdiction against the Issuer or any Restricted Subsidiary and such
judgment or judgments have not been satisfied, stayed, annulled or
rescinded within 60 days of being entered;
(7) the Issuer or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against
it in an involuntary case,
(c) consents to the appointment of a Custodian of it or
for all or substantially all of its assets, or
(d) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Issuer or any Significant
Subsidiary as debtor in an involuntary case,
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(b) appoints a Custodian of the Issuer or any Significant
Subsidiary or a Custodian for all or substantially all of the assets of
the Issuer or any Significant Subsidiary, or
(c) orders the liquidation of the Issuer or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(9) any Note Guarantee of any Significant Subsidiary ceases to be
in full force and effect (other than in accordance with the terms of such
Note Guarantee and this Indenture) or is declared null and void and
unenforceable or found to be invalid or any Guarantor denies its liability
under its Note Guarantee (other than by reason of release of a Guarantor
from its Note Guarantee in accordance with the terms of this Indenture and
the Note Guarantee).
SECTION 6.02. ACCELERATION.
(a) If an Event of Default specified in clause (7) or (8) of
Section 6.01 with respect to the Issuer occurs, all outstanding Notes shall
become due and payable without any further action or notice. If an Event of
Default (other than an Event of Default specified in clause (7) or (8) of
Section 6.01 with respect to the Issuer) shall have occurred and be continuing
under this Indenture, the Trustee, by written notice to the Issuer, or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, by written notice to the Issuer and the Trustee, may declare (an
"ACCELERATION DECLARATION") all amounts owing under the Notes to be due and
payable immediately. Upon such declaration of acceleration, the aggregate
principal of and accrued and unpaid interest on the outstanding Notes shall
become due and payable (a) if there is no Indebtedness outstanding under any
Credit Facility at such time, immediately and (b) if otherwise, upon the earlier
of (x) the final maturity (after giving effect to any applicable grace period or
extensions thereof) or an acceleration of any Indebtedness under any Credit
Facility prior to the express final Stated Maturity thereof and (y) five
business days after the Representative under each Credit Facility receives the
acceleration declaration, but, in the case of this clause (b) only, if such
Event of Default is then continuing; PROVIDED, HOWEVER, that after such
acceleration, but before a judgment or decree based on acceleration, the Holders
of a majority in aggregate principal amount of such outstanding Notes may
rescind and annul such acceleration:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default have been cured or waived
except nonpayment of principal and interest that has become due solely
because of this acceleration;
(3) to the extent the payment of such interest is lawful, interest
on overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid;
(4) if the Issuer has paid to the Trustee its reasonable
compensation and reimbursed the Trustee of its expenses, disbursements and
advances; and
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(5) in the event of a cure or waiver of an Event of Default of the
type set forth in Section 6.01(7) or (8), the Trustee shall have received
an Officers' Certificate and an Opinion of Counsel that such Event of
Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
(b) The Issuer shall provide prompt written notice to the holders
of Senior Debt and Guarantor Senior Debt of any acceleration pursuant to Section
6.02(a).
SECTION 6.03. OTHER REMEDIES.
If a Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, or interest on, the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon a Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes (which may include consents obtained
in connection with a tender offer or exchange offer of Notes) by notice to the
Trustee may waive an existing Default and its consequences, except a Default in
the payment of principal of, or interest on, any Note as specified in Section
6.01(1) or (2). The Issuer shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. When a Default is waived, it is cured and
ceases.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of not less than a majority in principal amount of the
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. Subject to Section 7.01, however, the Trustee may refuse
to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another Holder, or
that may involve the Trustee in personal liability; PROVIDED that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
against any loss or expense caused by taking such action or following such
direction.
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SECTION 6.06. LIMITATION ON SUITS.
No Holder will have any right to institute any proceeding with respect
to this Indenture or for any remedy thereunder, unless the Trustee:
(1) has failed to act for a period of 60 days after receiving
written notice of a continuing Event of Default by such Holder and a
request to act by Holders of at least 25% in aggregate principal amount of
Notes outstanding;
(2) has been offered indemnity satisfactory to it in its
reasonable judgment; and
(3) has not received from the Holders of a majority in aggregate
principal amount of the outstanding Notes a direction inconsistent with
such request.
However, such limitations do not apply to a suit instituted by a Holder of any
Note for enforcement of payment of the principal of or interest on such Note on
or after the due date therefor (after giving effect to the grace period
specified in Section 6.01(1)).
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, and interest on, a Note, on or after
the respective due dates therefor, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If a Default in payment of principal or interest specified in Section
6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Issuer or any other
obligor on the Notes for the whole amount of principal and accrued interest and
fees remaining unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on overdue installments
of interest, in each case at the rate PER ANNUM borne by the Notes and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relating to the Issuer, their creditors or their
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property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding. The Trustee shall be entitled
to participate as a member of any official committee of creditors in the matters
as it deems necessary or advisable.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for interest;
Third: to Holders for principal amounts due and unpaid on the Notes,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal; and
Fourth: to the Issuer or, if applicable, the Guarantors, as their
respective interests may appear.
The Trustee, upon prior notice to the Issuer, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of a Default:
(1) The Trustee need perform only those duties as are specifically
set forth herein or in the Trust Indenture Act and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture against
the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates (including Officers'
Certificates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein, the Trustee
may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of Section 7.01(b).
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it.
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(e) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to this
Section 7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(g) In the absence of bad faith, negligence or willful misconduct
on the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may rely conclusively on any resolution,
certificate (including any Officers' Certificate), statement, instrument,
opinion (including any Opinion of Counsel), notice, request, direction, consent,
order, bond, debenture, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and an Opinion of Counsel, which shall conform
to the provisions of Section 12.05. 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.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other than an
agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers under this Indenture.
(e) The Trustee may consult with counsel of its selection and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby.
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(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any Opinion of
Counsel), notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, upon reasonable notice to the Issuer, to examine the books,
records, and premises of the Issuer, personally or by agent or attorney at the
sole cost of the Issuer.
(h) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(i) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as duties.
(j) Except with respect to Section 4.01 and 4.06, the Trustee
shall have no duty to inquire as to the performance of the Issuer with respect
to the covenants contained in Article Four. In addition, the Trustee shall not
be deemed to have knowledge of an Event of Default except (i) any Default or
Event of Default occurring pursuant to Sections 4.01, 6.01(1) or 6.01(2) or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification.
(k) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
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 Issuer, its
Subsidiaries or its respective Affiliates with the same rights it would have if
it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in this Indenture or any
document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee's certificate of authentication. The Trustee makes
no representations with respect to the effectiveness or adequacy of this
Indenture.
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SECTION 7.05. NOTICE OF DEFAULT.
If a Default occurs and is continuing and the Trustee receives actual
notice of such Default, the Trustee shall mail to each Holder notice of the
uncured Default within 30 days after such Default occurs. Except in the case of
a Default in payment of principal of, or interest on, any Note, including an
accelerated payment and the failure to make a payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or the Net Proceeds Payment
Date pursuant to a Net Proceeds Offer, or a Default in complying with the
provisions of Article Five, the Trustee may withhold the notice if and so long
as the Board of Directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Trustee in good faith determines
that withholding the notice is in the interest of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, beginning with May 15, 2005, the
Trustee shall, to the extent that any of the events described in Trust Indenture
Act ss. 313(a) occurred within the previous twelve months, but not otherwise,
mail to each Holder a brief report dated as of such date that complies with
Trust Indenture Act ss. 313(a). The Trustee also shall comply with Trust
Indenture Act ss.ss. 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Issuer and filed with the SEC and each securities exchange, if
any, on which the Notes are listed.
The Issuer shall notify the Trustee if the Notes become listed on any
securities exchange or of any delisting thereof and the Trustee shall comply
with Trust Indenture Act ss. 313(d).
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuer shall pay to the Trustee from time to time such compensation
as the Issuer and the Trustee shall from time to time agree in writing for its
services hereunder. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Issuer shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
(including reasonable fees and expenses of counsel) incurred or made by it in
addition to the compensation for its services, except any such disbursements,
expenses and advances as may be attributable to the Trustee's negligence, bad
faith or willful misconduct. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents and counsel.
The Issuer shall indemnify each of the Trustee or any predecessor
Trustee and its agents for, and hold them harmless against, any and all loss,
damage, claims including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee), liability or expense incurred by them
except for such actions to the extent caused by any negligence, bad faith or
willful misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable costs and
expenses of defending themselves against or investigating any claim or liability
in connection with the exercise or performance of
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any of the Trustee's rights, powers or duties hereunder. The Trustee shall
notify the Issuer promptly of any claim asserted against the Trustee or any of
its agents for which it may seek indemnity. The Issuer shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee and its agents
subject to the claim may have separate counsel and the Issuer shall pay the
reasonable fees and expenses of such counsel; PROVIDED, HOWEVER, that the Issuer
will not be required to pay such fees and expenses if there is no conflict of
interest between the Issuer and the Trustee and its agents subject to the claim
in connection with such defense as reasonably determined by the Trustee. The
Issuer need not pay for any settlement made without its written consent. The
Issuer need not reimburse any expense or indemnify against any loss or liability
to the extent incurred by the Trustee through the Trustee's negligence, bad
faith or willful misconduct.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes against all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal and interest on particular Notes. The
obligations of the Issuer and the Guarantors under this Section shall not be
subordinated to the payment of Senior Debt pursuant to Article Ten or Section
11.02 except assets or money held in trust to pay principal of or interest on
particular Notes.
When the Trustee incurs expenses or renders services after a Default
specified in Section 6.01(7) or (8) occurs, such expenses and the compensation
for such services shall be paid to the extent allowed under any Bankruptcy Law.
Notwithstanding any other provision in this Indenture, the foregoing
provisions of this Section 7.07 shall survive the satisfaction and discharge of
this Indenture or the appointment of a successor Trustee.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Issuer in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Issuer and the Trustee and may
appoint a successor Trustee. The Issuer may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a ma-
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jority in principal amount of the Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.07, 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. A successor Trustee shall mail notice of its succession to each
Holder. If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee at the expense of the Issuer.
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.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; PROVIDED that such
corporation shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirement of Trust Indenture Act ss.ss. 310(a)(1), 310(a)(2) and 310(a)(5).
The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with Trust Indenture Act ss. 310(b); PROVIDED, HOWEVER, that there
shall be excluded from the operation of Trust Indenture Act ss. 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer are outstanding, if
the requirements for such exclusion set forth in Trust Indenture Act ss.
310(b)(1) are met. The provisions of Trust Indenture Act ss. 310 shall apply to
the Issuer and any other obligor of the Notes.
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
The Trustee, in its capacity as Trustee hereunder, shall comply with
Trust Indenture Act ss. 311(a), excluding any creditor relationship listed in
Trust Indenture Act ss. 311(b). A Trustee who has resigned or been removed shall
be subject to Trust Indenture Act ss. 311(a) to the extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE ISSUER'S OBLIGATIONS.
The Issuer may terminate its obligations under the Notes and this
Indenture and the obligations of the Guarantors under the Note Guarantees and
this Indenture and this Indenture shall cease to be of further effect, except
those obligations referred to in the penultimate paragraph of this Section 8.01,
if:
(1) all the Notes that have been authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid
and Notes for whose payment money has been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from this trust) have been delivered to the Trustee for
cancellation, or
(2) (a) all Notes not delivered to the Trustee for cancellation
otherwise have become due and payable, will become due and payable, or may
be called for redemption, within one year or have been called for
redemption pursuant to Section 5 or Section 6 of the Notes and the Issuer
has irrevocably deposited or caused to be deposited with the Trustee funds
in trust sufficient to pay and discharge the entire Indebtedness (including
all principal and accrued interest) on the Notes not theretofore delivered
to the Trustee for cancellation,
(b) the Issuer has paid all sums payable by it under this
Indenture, and
(c) the Issuer has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Notes at maturity
or on the Redemption Date, as the case may be.
In addition, the Issuer must deliver an Officers' Certificate and an
Opinion of Counsel stating that all conditions precedent to satisfaction and
discharge have been complied with.
In the case of clause (2) of this Section 8.01, and subject to the next
sentence and notwithstanding the foregoing paragraph, the Issuer's obligations
in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 4.03 (as to legal existence of
the Issuer only), 7.07, 8.05 and 8.06 shall survive until the Notes are no
longer outstanding pursuant to the last paragraph of Section 2.08. After
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the Notes are no longer outstanding, the Issuer's obligations in Sections 7.07,
8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Issuer's obligations under the
Notes and this Indenture except for those surviving obligations specified above.
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Issuer may, at its option and at any time, elect to have
either paragraph (b) or (c) below be applied to all outstanding Notes upon
compliance with the conditions set forth in Section 8.03.
(b) Upon the Issuer's exercise under Section 8.02(a) hereof of the
option applicable to this Section 8.02(b), the Issuer and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.03, be
deemed to have been discharged from their obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that
the Issuer and the Guarantors shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes and the Note
Guarantees, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.04 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture and the Guarantors shall be
deemed to have satisfied all of their obligations under the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:
(i) the rights of Holders of outstanding Notes to receive, solely
from the trust fund described in Section 8.04 hereof, and as more fully set
forth in such Section 8.04, payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due;
(ii) the Issuer's obligations with respect to such Notes under
Article Two and Section 4.02 hereof;
(iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuer's obligations in connection therewith; and
(iv) the provisions of this Article Eight applicable to Legal
Defeasance.
Subject to compliance with this Article Eight, the Issuer may exercise
its option under this Section 8.02(b) notwithstanding the prior exercise of its
option under Section 8.02(c) hereof.
(c) Upon the Issuer's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Issuer and the Guarantors shall,
subject to the satisfaction of the
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conditions set forth in Section 8.03 hereof, be released from their respective
obligations under the covenants contained in Sections 4.03 (other than with
respect to the legal existence of the Issuer), 4.04, 4.05 and 4.09 through 4.20,
clause (3) of Section 5.01(a) and Article Eleven hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.03
are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Issuer and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Issuer's exercise under paragraph
(a) hereof of the option applicable to this paragraph (c), subject to the
satisfaction of the conditions set forth in Section 8.03 hereof, clauses (3),
(5), (6) and (9) of Section 6.01 hereof shall not constitute Events of Default.
SECTION 8.03. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, U.S. Legal Tender, U.S. Government
Obligations or a combination thereof, in such amounts as will be sufficient
(without reinvestment), in the opinion of a nationally recognized firm of
independent public accountants selected by the Issuer, to pay the principal
of and interest on the Notes on the stated date for payment or on the
Redemption Date of the principal or installment of principal of or interest
on the Notes,
(2) in the case of Legal Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel in the United States
confirming that:
(a) the Issuer has received from, or there has been
published by the Internal Revenue Service, a ruling, or
(b) since the date of this Indenture, there has been a
change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon this Opinion of Counsel
shall confirm that, the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such Legal Defeasance and will be
subject to U.S. 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,
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(3) in the case of Covenant Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if the Covenant Defeasance had not occurred,
(4) no Default shall have occurred and be continuing on the date
of such deposit (other than a Default resulting from the borrowing of funds
to be applied to such deposit),
(5) the Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a Default under this Indenture
or a default under any other material agreement or instrument to which the
Issuer or any of its Subsidiaries is a party or by which the Issuer or any
of its Subsidiaries is bound (other than any such Default or default
resulting solely from the borrowing of funds to be applied to such
deposit),
(6) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by it with the intent of
preferring the Holders over any other of its creditors or with the intent
of defeating, hindering, delaying or defrauding any other of its creditors
or others, and
(7) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the conditions
provided for in, in the case of the Officers' Certificate, clauses (1)
through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or
(3) and (5) of this Section 8.03 have been complied with.
SECTION 8.04. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender and
U.S. Government Obligations deposited with it pursuant to this Article Eight,
and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of the
principal of and the interest on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender and U.S. Government Obligations,
except as it may agree with the Issuer.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Legal Tender and U.S.
Government Obligations deposited pursuant to Section 8.03 or the principal and
interest received in respect thereof, other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
request any U.S. Legal Tender and U.S. Government Obligations held by it as
provided in Section 8.03 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certifica-
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tion thereof delivered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
SECTION 8.05. REPAYMENT TO THE ISSUER.
The Trustee and the Paying Agent shall pay to the Issuer upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years; PROVIDED that the Trustee or such Paying Agent, before
being required to make any payment, may at the expense of the Issuer cause to be
published once in a newspaper of general circulation in the City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein which shall be at least 30
days from the date of such publication or mailing any unclaimed balance of such
money then remaining will be repaid to the Issuer. After payment to the Issuer,
Holders entitled to such money must look to the Issuer for payment as general
creditors unless an applicable law designates another Person.
SECTION 8.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender
and U.S. Government Obligations in accordance with this Article Eight 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, or if the funds deposited with the Trustee to effect Covenant
Defeasance are insufficient to pay the principal of, and interest on, the Notes
when due, the Issuer's obligations under this Indenture, and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article Eight until such time as the Trustee or Paying Agent is permitted to
apply all such U.S. Legal Tender and U.S. Government Obligations in accordance
with this Article Eight; PROVIDED that if the Issuer has made any payment of
interest on, or principal of, any Notes because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the U.S. Legal Tender and U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
(a) Subject to Section 9.03, the Issuer and the Trustee, together,
may amend or supplement this Indenture, the Notes or the Note Guarantees without
notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
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(3) to provide for the assumption of the Issuer's obligations to
the Holders in the case of a merger, consolidation or sale of all or
substantially all of the assets, in accordance with Article Five;
(4) to release any Guarantor from any of its obligations under its
Note Guarantee or this Indenture (to the extent permitted by this
Indenture);
(5) to add any Subsidiary of the Issuer as a Guarantor;
(6) to make any change that would not materially adversely affect
the rights of any Holder; or
(7) in the case of this Indenture, to comply with requirements of
the SEC in order to effect or maintain the qualification of this Indenture
under the Trust Indenture Act;
PROVIDED that the Issuer has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS.
(a) Subject to Sections 6.07 and 9.03, the Issuer, the Guarantors
and the Trustee, together, with the written consent (which may include consents
obtained in connection with a tender offer or exchange offer for Notes) of the
Holder or Holders of at least a majority in aggregate principal amount of the
Notes then outstanding may amend or supplement this Indenture, the Notes or the
Note Guarantees, without notice to any other Holders. Subject to Sections 6.07
and 9.03, the Holder or Holders of a majority in aggregate principal amount of
the outstanding Notes may waive compliance with any provision of this Indenture,
the Notes or the Note Guarantees without notice to any other Holders;
(b) Notwithstanding Section 9.02(a), without the consent of each
Holder affected, no amendment or waiver may:
(1) reduce, or change the maturity, of the principal of any Note;
(2) reduce the rate of or extend the time for payment of interest
on any Note;
(3) reduce any premium payable upon optional redemption of the
Notes, or change the date on, or the circumstances under, which any Notes
are subject to redemption (other than provisions of Section 4.09 and
Section 4.13, except that if a Change of Control has occurred, no amendment
or other modification of the obligation of the Issuer to make a Change of
Control Offer relating to such Change of Control shall be made without the
consent of each Holder of the Notes affected);
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(4) make any Note payable in money or currency other than that
stated in the Notes;
(5) modify or change any provision of this Indenture or the
related definitions affecting the subordination of the Notes or any Note
Guarantee in a manner that adversely affects the Holders;
(6) reduce the percentage of Holders necessary to consent to an
amendment or waiver to this Indenture or the Notes;
(7) waive a default in the payment of principal of or premium or
interest on any Notes (except a rescission of acceleration of the Notes by
the Holders thereof as provided in this Indenture and a waiver of the
payment default that resulted from such acceleration);
(8) impair the rights of Holders to receive payments of principal
of or interest on the Notes on or after the due date therefor or to
institute suit for the enforcement of any payment on the Notes; or
(9) release any Guarantor that is a Significant Subsidiary from
any of its obligations under its Note Guarantee or this Indenture, except
as permitted by this Indenture; or
(10) make any change in these amendment and waiver provisions.
(c) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver but it shall be sufficient if such consent approves the
substance thereof.
(d) A consent to any amendment, supplement or waiver under this
Indenture by any Holder given in connection with an exchange (in the case of an
exchange offer) or a tender (in the case of a tender offer) of such Holder's
Notes will not be rendered invalid by such tender or exchange.
(e) After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Issuer shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuer to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.03. EFFECT ON SENIOR DEBT.
No amendment of, or supplement or waiver to, this Indenture shall
adversely affect the rights of any holder of Senior Debt or Guarantor Senior
Debt under Article Ten and Section 11.02 and the defined terms as used therein
without the consent of such holder or its Representative or, in accordance with
the terms of such Senior Debt or Guarantor Senior Debt, the
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consent of the agent or representative of such holder or the requisite holders
of such Senior Debt or Designated Senior Debt.
SECTION 9.04. COMPLIANCE WITH THE TRUST INDENTURE ACT.
From the date on which this Indenture is qualified under the Trust
Indenture Act, every amendment, waiver or supplement of this Indenture, the
Notes or the Note Guarantees shall comply with the Trust Indenture Act as then
in effect.
SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of his Note by notice to the Trustee or the Issuer received
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be prior to the first solicitation
of such consent. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 120 days after such record date. The Issuer
shall inform the Trustee in writing of the fixed record date if applicable.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (10) of Section 9.02(b), in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; PROVIDED that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of, and interest
on, a Note, on or after the respective due dates therefor, or to bring suit for
the enforcement of any such payment on or after such respective dates without
the consent of such Holder.
SECTION 9.06. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note, the
Issuer may require the Holder of the Note to deliver it to the Trustee. The
Issuer shall provide the Trustee with an appropriate notation on the Note about
the changed terms and cause the Trustee to return it to the Holder at the
Issuer's expense. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue, and the Trustee shall authenticate,
a
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new Note that reflects the changed terms. 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 9.07. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; PROVIDED that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall be at the expense of the Issuer.
ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. NOTES SUBORDINATED TO SENIOR DEBT.
Anything herein to the contrary notwithstanding, each of the Issuer,
for itself and its successors, and each Holder, by his or her acceptance of
Notes, agrees that the payment of all Obligations owing to the Holders in
respect of the Notes is subordinated, to the extent and in the manner provided
in this Article Ten, to the prior payment in full of all Senior Debt in cash or
cash equivalents, whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding anything in this Article Ten to the contrary, payments and
distributions (A) of Permitted Junior Securities and (B) made relating to the
Notes from the trusts established pursuant to Article Eight shall not be so
subordinated in right of payment, so long as, with respect to (B), (i) the
conditions specified in Article Eight (without any waiver or modification of the
requirement that the deposits pursuant thereto do not conflict with the terms of
the Credit Facilities or any other Senior Debt) are satisfied on the date of any
deposit pursuant to said trust and (ii) such payments and distributions did not
violate the provisions of this Article Ten or Section 11.02 of this Indenture
when made.
This Article Ten shall constitute a continuing offer to all Persons who
become holders of, or continue to hold, Senior Debt, such provisions are made
for the benefit of the holders of Senior Debt and such holders are made obligees
hereunder and any one or more of them may enforce such provisions.
SECTION 10.02. SUSPENSION OF PAYMENT WHEN SENIOR DEBT IS IN DEFAULT.
(a) If any default occurs and is continuing in the payment when
due, whether at maturity, upon any redemption, by declaration or otherwise, of
any principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or fees with respect to, any Senior Debt (a "PAYMENT DEFAULT"), then
no payment or distribution of any kind or character shall be made
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by the Issuer with respect to any Obligations on or relating to the Notes or to
acquire any of the Notes for cash or assets or otherwise.
(b) If any other event of default (other than a Payment Default)
occurs and is continuing with respect to any Designated Senior Debt (as such
event of default is defined in the instrument creating or evidencing such
Designated Senior Debt) permitting the holders of such Designated Senior Debt
then outstanding to accelerate the maturity thereof (a "NON-PAYMENT DEFAULT")
and if the Representative for the respective issue of Designated Senior Debt
gives written notice of the Non-Payment Default to the Trustee stating that such
notice is a payment blockage notice (a "PAYMENT BLOCKAGE NOTICE"), then during
the period (the "PAYMENT BLOCKAGE PERIOD") beginning upon the delivery of such
Payment Blockage Notice and ending on the earliest of (1) the date on which all
such nonpayment defaults are cured or waived, (2) 179 days after the date on
which the applicable Payment Blockage Notice is received or (3) the date on
which the Trustee receives notice from the Representative for such Designated
Senior Debt rescinding the Payment Blockage Notice (unless the maturity of any
Designated Senior Debt has been accelerated), the Issuer shall not (x) make any
payment of any kind or character with respect to any Obligations on or with
respect to the Notes or (y) acquire any of the Notes for cash or assets or
otherwise. Notwithstanding anything herein to the contrary, (x) in no event will
a Payment Blockage Period extend beyond 179 days from the date the applicable
Payment Blockage Notice is received by the Trustee and (y) no new Payment
Blockage Notice may be delivered unless and until 360 days have elapsed since
the effectiveness of the immediately prior Payment Blockage Notice. For all
purposes of this Section 10.02(b), no Non-Payment Default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Debt shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period by the Representative of
such Designated Senior Debt whether or not within a period of 360 consecutive
days, unless such Non-Payment Default shall have been cured or waived for a
period of not less than 90 consecutive days. Any subsequent action, or any
breach of any financial covenants for a period ending after the date of delivery
of such Payment Blockage Notice that, in either case, would give rise to a
Non-Payment Default pursuant to any provisions under which a Non-Payment Default
previously existed or was continuing shall constitute a new Non-Payment Default
for this purpose.
(c) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by the foregoing provisions of this Section 10.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt (PRO RATA to such holders on the basis of the respective amount of
Senior Debt held by such holders) or their respective Representatives, as their
respective interests may appear. The Trustee shall be entitled to rely on
information regarding amounts outstanding on the Senior Debt, if any, received
from the holders of the Senior Debt (or their Representatives).
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of the Notes to take any action to accelerate the
maturity of the Notes pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; PROVIDED that all Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or cash equivalents before the
Holders
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are entitled to receive any payment of any kind or character with respect to
Obligations on the Notes.
SECTION 10.03. NOTES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR DEBT ON
DISSOLUTION, LIQUIDATION OR REORGANIZATION OF THE ISSUER.
(a) Upon any payment or distribution of assets of the Issuer of
any kind or character, whether in cash, assets or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Issuer or in
a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Issuer or its assets, whether voluntary or
involuntary, all Obligations due or to become due on all Senior Debt shall first
be paid in full in cash or cash equivalents, or such payment duly provided for
to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
or relating to the Notes, or for the acquisition of any of the Notes for cash or
assets or otherwise. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment or distribution
of assets of the Issuer of any kind or character, whether in cash, assets or
securities, to which the Holders of the Notes or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
the Issuer or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Holders or by the
Trustee under this Indenture if received by them, directly to the holders of
Senior Debt (PRO RATA to such holders on the basis of the respective amounts of
Senior Debt held by such holders) or their respective Representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Debt may have been issued, as their respective interests may appear, for
application to the payment of Senior Debt remaining unpaid until all such Senior
Debt has been paid in full in cash or cash equivalents after giving effect to
any concurrent payment, distribution or provision therefor to or for the holders
of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on
behalf of the Issuer, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Senior Debt or part thereof originally intended to
be satisfied shall be for purpose of this Article Ten deemed to be reinstated
and outstanding as if such payment had not occurred.
It is further agreed that any diminution (whether pursuant to court
decree or otherwise, including without limitation for any of the reasons
described in the preceding sentence) of the Issuer's obligation to make any
distribution or payment pursuant to any Senior Debt, except to the extent such
diminution occurs by reason of the repayment (which has not been disgorged or
returned) of such Senior Debt in cash or cash equivalents, shall have no force
or effect for purposes of the subordination provisions contained in this Article
Ten, with any turnover of payments as otherwise calculated pursuant to this
Article Ten to be made as if no such diminution had occurred.
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(c) In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Issuer of any kind or character, whether in
cash, assets or securities, shall be received by any Holder when such payment or
distribution is prohibited by this Section 10.03, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Debt (PRO RATA to such holders on the basis of the
respective amount of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full in cash or cash
equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(d) The consolidation of the Issuer with, or the merger of the
Issuer with or into, another Person or the liquidation or dissolution of the
Issuer following the conveyance or transfer of all or substantially all of its
assets, to another Person upon the terms and conditions provided in Article Five
hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other Person shall, as a
part of such consolidation, merger, conveyance or transfer, assume the Issuer's
obligations hereunder in accordance with Article Five hereof.
SECTION 10.04. PAYMENTS MAY BE MADE ON NOTES.
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Issuer, except under the conditions described in Sections
10.02 and 10.03, from making payments at any time for the purpose of making
payments of principal of, and interest on, the Notes, or from depositing with
the Trustee any moneys for such payments, or (ii) in the absence of actual
knowledge by the Trustee that a given payment would be prohibited by Section
10.02 or 10.03, the application by the Trustee of any moneys deposited with it
for the purpose of making such payments of principal of, and interest on, the
Notes to the Holders entitled thereto unless at least two Business Days prior to
the date upon which such payment would otherwise become due and payable a
Responsible Officer of the Trustee shall have actually received the written
notice provided for in the first sentence of Section 10.02(b) or in Section
10.07 (PROVIDED that, notwithstanding the foregoing, the Holders receiving any
payments made in contravention of Section 10.02 and/or 10.03 (and the respective
such payments) shall otherwise be subject to the provisions of Section 10.02 and
Section 10.03). Notwithstanding anything to the contrary contained in this
Article Ten or elsewhere in this Indenture, payments and distributions from the
funds deposited pursuant to Article Eight will be permitted to be made and will
not be subject to the provisions of this Article Ten so long as such funds were
deposited in accordance with the provisions of Article Eight and did not violate
the provisions of this Article Ten when such funds were so deposited. The Issuer
shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Issuer, although any delay or failure to
give any such notice shall have no effect on the subordination provisions
contained herein.
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SECTION 10.05. HOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all Senior Debt in cash or cash
equivalents, the Holders of the Notes shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of cash, assets or
securities of the Issuer applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Issuer,
or by or on behalf of the Holders by virtue of this Article Ten, which otherwise
would have been made to the Holders shall, as between the Issuer and the
Holders, be deemed to be a payment by the Issuer to or on account of the Senior
Debt, it being understood that the provisions of this Article Ten are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Senior Debt, on the other hand.
SECTION 10.06. OBLIGATIONS OF THE ISSUER UNCONDITIONAL.
Nothing contained in this Article Ten or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as between the Issuer, and the
Holders, the obligation of the Issuer, which is absolute and unconditional, to
pay to the Holders the principal of, and any interest 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 Issuer other than the holders of the Senior Debt, nor shall anything herein
or therein prevent the Holder of any Note or the Trustee on its behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, of the holders of Senior Debt in
respect of cash, assets or securities of the Issuer received upon the exercise
of any such remedy.
SECTION 10.07. NOTICE TO TRUSTEE.
The Issuer shall give prompt written notice to the Trustee of any fact
known to the Issuer which would prohibit the making of any payment to or by the
Trustee in respect of the Notes pursuant to the provisions of this Article Ten,
although any delay or failure to give any such notice shall have no effect on
the subordination provisions contained herein. Regardless of anything to the
contrary contained in this Article Ten or elsewhere in this Indenture, the
Trustee shall not be charged with knowledge of the existence of any default or
event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing from the Issuer, or from a
holder of Senior Debt or a Representative therefor and, prior to the receipt of
any such written notice, the Trustee shall be entitled to assume (in the absence
of actual knowledge to the contrary) that no such facts exist. The Trustee shall
be entitled to rely on the delivery to it of any notice pursuant to this Section
10.07 to establish that such notice has been given by a holder of Senior Debt
(or a Representative thereof).
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence
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to the satisfaction of the Trustee as to the amounts of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten, and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 10.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Issuer referred to in
this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceeding is pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered
to the Trustee or the Holders of the Notes, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other Indebtedness of the Issuer, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Ten.
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee and any agent of the Issuer or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Debt, the distribution may be made and the notice may be given
to their Representative, if any.
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
ISSUER OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Issuer or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Issuer with the terms of this Indenture, regardless of any knowledge
thereof, which any such holder may have or otherwise be charged with.
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Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee, without incurring responsibility to the
Trustee or the Holders of the Notes and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders of the Notes to the holders of the Senior Debt, do any one or more of
the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt, or any instrument evidencing the same or
any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Issuer and any other Person.
SECTION 10.11. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
NOTES.
Each Holder of the Notes by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt
and the Holders of the Notes, the subordination provided in this Article Ten,
and appoints the Trustee its attorney-in-fact for such purposes, including, in
the event of any dissolution, winding-up, liquidation or reorganization of the
Issuer (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of credits or
otherwise) tending towards liquidation of the business and assets of the Issuer,
the filing of a claim for the unpaid balance of its Notes and accrued interest
in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Notes. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Senior Debt or their Representative to authorize,
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 thereof, or to authorize the Trustee or the holders of Senior Debt or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 10.12. THIS ARTICLE TEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of, or interest
on, the Notes by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of an Event of Default.
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SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Ten will apply to amounts due to the Trustee
(other than payments of Obligations owing to Holders in respect of the Notes)
pursuant to other Sections of this Indenture.
ARTICLE ELEVEN
NOTE GUARANTEE
SECTION 11.01. UNCONDITIONAL GUARANTEE.
Subject to the provisions of this Article Eleven, each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Issuers or any other Guarantors to the Holders or the Trustee hereunder or
thereunder: (a) (x) the due and punctual payment of the principal of, premium,
if any, and interest on the Notes when and as the same shall become due and
payable, whether at maturity, upon redemption or repurchase, by acceleration or
otherwise, (y) the due and punctual payment of interest on the overdue principal
and (to the extent permitted by law) interest, if any, on the Notes and (z) the
due and punctual payment and performance of all other obligations of the Issuers
and all other obligations of the other Guarantors (including under the Note
Guarantees), in each case, to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.07 hereof), all in accordance
with the terms hereof and thereof (collectively, the "GUARANTEE OBLIGATIONS");
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, the due and punctual payment and performance of
Guarantee Obligations in accordance with the terms of the extension or renewal,
whether at maturity, upon redemption or repurchase, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Issuers to the Holders under this
Indenture or under the Notes, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately. A Default under this Indenture or the Notes shall constitute an
event of default under the Note Guarantees, and shall entitle the Holders of
Notes to accelerate the obligations of the Guarantors thereunder in the same
manner and to the same extent as the obligations of the Issuers.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Issuers, any action to enforce the same,
whether or not a Note Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. To the fullest extent permitted by law, each of the
Guarantors hereby waives the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuers, any right to require a proceeding first against the Issuers,
protest, notice and all demands
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whatsoever and covenants that its Note Guarantee shall not be discharged except
by complete performance of the obligations contained in the Notes, this
Indenture and this Note Guarantee. This Note Guarantee is a guarantee of payment
and not of collection. If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers or to any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Issuers
or such Guarantor, any amount paid by the Issuers or such Guarantor to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between it, on the one hand, and the Holders of Notes and the
Trustee, on the other hand, (a) subject to this Article Eleven, the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article Six
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Six hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.
SECTION 11.02. SUBORDINATION OF NOTE GUARANTEE.
The obligations of each Guarantor under its Note Guarantee pursuant to
this Article Eleven shall be junior and subordinated to the prior payment in
full of the Guarantor Senior Debt of such Guarantor in cash or cash equivalents
on the same basis as the Notes are junior and subordinated to Senior Debt of the
Issuers. For the purposes of the foregoing sentence, the Trustee and the Holders
shall have the right to receive and/or retain payments by any of the Guarantors
only at such times as they may receive and/or retain payments in respect of the
Notes pursuant to this Indenture, including Article Ten hereof.
SECTION 11.03. LIMITATION ON GUARANTOR LIABILITY.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal, foreign or state law to
the extent applicable to any Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Subsidiary Guarantors hereby
irrevocably agree that the obligations of such Guarantor under its Note
Guarantee and this Article Eleven shall be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including any guarantee under the Credit Agreement) that are relevant
under such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Guarantor under
this Article Eleven, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance. Each Subsidiary
Guarantor that makes a payment for distribution under its Note Guarantee is
entitled to a contribution from each other Subsidiary Guarantor in a PRO RATA
amount based on the adjusted net assets of each Subsidiary Guarantor.
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SECTION 11.04. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To further evidence its Note Guarantee set forth in Section 11.01, each
Guarantor hereby agrees that a notation of such Note Guarantee, substantially in
the form of EXHIBIT F hereto, shall be endorsed on each Note authenticated and
delivered by the Trustee. Such Note Guarantee shall be executed on behalf of
each Guarantor by either manual or facsimile signature of one Officer or other
person duly authorized by all necessary corporate action of each Guarantor who
shall have been duly authorized to so execute by all requisite corporate action.
The validity and enforceability of any Note Guarantee shall not be affected by
the fact that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Note Guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Note Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which such Note Guarantee is endorsed or at any time thereafter,
such Guarantor's Note Guarantee of such Note shall nevertheless be valid.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Note Guarantee set forth
in this Indenture on behalf of each Guarantor.
SECTION 11.05. RELEASE OF A SUBSIDIARY GUARANTOR.
A Subsidiary Guarantor shall be released from its obligations under its
Note Guarantee and its obligations under this Indenture and the Registration
Rights Agreement:
(1) in the event of a sale or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor, by way of
merger, consolidation or otherwise, or a sale or other disposition of all
of the Equity Interests of such Subsidiary Guarantor then held by the
Issuer and the Restricted Subsidiaries; or
(2) if such Subsidiary Guarantor is designated as an Unrestricted
Subsidiary or otherwise ceases to be a Restricted Subsidiary, in each case
in accordance with the provisions of this Indenture, upon effectiveness of
such designation or when it first ceases to be a Restricted Subsidiary,
respectively; or
(3) if such Subsidiary Guarantor shall not guarantee any
Indebtedness under any Credit Facility (other than if such Subsidiary
Guarantor no longer guarantees any Indebtedness under any Credit Facility
as a result of payment under any guarantee of any such Indebtedness by any
Subsidiary Guarantor); PROVIDED that a Subsidiary Guarantor shall not be
permitted to be released from its Note Guarantee if it is an obligor with
respect to Indebtedness that would not, under Section 4.10, be permitted to
be incurred by a Restricted Subsidiary that is not a Guarantor.
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The Trustee shall execute an appropriate instrument prepared by the
Issuers evidencing the release of a Guarantor from its obligations under its
Note Guarantee upon receipt of a request by the Issuers or such Guarantor
accompanied by an Officers' Certificate and an Opinion of Counsel certifying as
to the compliance with this Section 11.05; PROVIDED, HOWEVER, that the legal
counsel delivering such Opinion of Counsel may rely as to matters of fact on one
or more Officers' Certificates of the Issuers.
Except as set forth in Articles Four and Five and this Section 11.05,
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Issuers or another
Guarantor or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Issuers or another
Guarantor.
SECTION 11.06. WAIVER OF SUBROGATION.
Until this Indenture is discharged and all of the Notes are discharged
and paid in full, each Guarantor hereby irrevocably waives and agrees not to
exercise any claim or other rights which it may now or hereafter acquire against
the Issuers that arise from the existence, payment, performance or enforcement
of the Issuers' obligations under the Notes or this Indenture and such
Guarantor's obligations under this Note Guarantee and this Indenture, in any
such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders against the Issuers, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Issuers, directly or indirectly, in cash or other assets or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and any amounts owing to the Trustee or the Holders of Notes under the
Notes, this Indenture, or any other document or instrument delivered under or in
connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for
the benefit of, and held in trust for the benefit of, the Trustee or the Holders
and shall forthwith be paid to the Trustee for the benefit of itself or such
Holders to be credited and applied to the obligations in favor of the Trustee or
the Holders, as the case may be, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
11.06 is knowingly made in contemplation of such benefits.
SECTION 11.07. IMMEDIATE PAYMENT.
Each Guarantor agrees to make immediate payment to the Trustee on
behalf of the Holders of all Guarantee Obligations owing or payable to the
respective Holders upon receipt of a demand for payment therefor by the Trustee
to such Guarantor in writing.
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SECTION 11.08. NO SET-OFF.
Each payment to be made by a Guarantor hereunder in respect of the
Guarantee Obligations shall be payable in the currency or currencies in which
such Guarantee Obligations are denominated, and, to the fullest extent permitted
by law, shall be made without set-off, counterclaim, reduction or diminution of
any kind or nature.
SECTION 11.09. GUARANTEE OBLIGATIONS ABSOLUTE.
The obligations of each Guarantor hereunder are and shall be absolute
and unconditional and any monies or amounts expressed to be owing or payable by
each Guarantor hereunder which may not be recoverable from such Guarantor on the
basis of a Note Guarantee shall be recoverable from such Guarantor as a primary
obligor and principal debtor in respect thereof.
SECTION 11.10. NOTE GUARANTEE OBLIGATIONS CONTINUING.
The obligations of each Guarantor hereunder shall be continuing and
shall remain in full force and effect until all such obligations have been paid
and satisfied in full. Each Guarantor agrees with the Trustee that it will from
time to time deliver to the Trustee suitable acknowledgments of this continued
liability hereunder and under any other instrument or instruments in such form
as counsel to the Trustee may advise and as will prevent any action brought
against it in respect of any default hereunder being barred by any statute of
limitations now or hereafter in force and, in the event of the failure of a
Guarantor so to do, it hereby irrevocably appoints the Trustee the attorney and
agent of such Guarantor to make, execute and deliver such written acknowledgment
or acknowledgments or other instruments as may from time to time become
necessary or advisable, in the judgment of the Trustee on the advice of counsel,
to fully maintain and keep in force the liability of such Guarantor hereunder.
SECTION 11.11. NOTE GUARANTEE OBLIGATIONS NOT REDUCED.
The obligations of each Guarantor hereunder shall not be satisfied,
reduced or discharged solely by the payment of such principal, premium, if any,
interest, fees and other monies or amounts as may at any time prior to discharge
of this Indenture pursuant to Article Eight be or become owing or payable under
or by virtue of or otherwise in connection with the Notes or this Indenture.
SECTION 11.12. NOTE GUARANTEE OBLIGATIONS REINSTATED.
The obligations of each Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of any Guarantor hereunder
(whether such payment shall have been made by or on behalf of the Issuers or by
or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders
upon the insolvency, bankruptcy, liquidation or reorganization of the Issuers or
any Guarantor or otherwise, all as though such payment had not been made. If
demand for, or acceleration of the time for, payment by the Issuers or any other
Guarantor is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Issuers or such Guarantor, all such
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Indebtedness otherwise subject to demand for payment or acceleration shall
nonetheless be payable by each Guarantor as provided herein.
SECTION 11.13. NOTE GUARANTEE OBLIGATIONS NOT AFFECTED.
To the fullest extent permitted by law, the obligations of each
Guarantor hereunder shall not be affected, impaired or diminished in any way by
any act, omission, matter or thing whatsoever, occurring before, upon or after
any demand for payment hereunder (and whether or not known or consented to by
any Guarantor or any of the Holders) which, but for this provision, might
constitute a whole or partial defense to a claim against any Guarantor hereunder
or might operate to release or otherwise exonerate any Guarantor from any of its
obligations hereunder or otherwise affect such obligations, whether occasioned
by default of any of the Holders or otherwise, including, without limitation:
(a) any limitation of status or power, disability, incapacity or
other circumstance relating to the Issuers or any other Person, including any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding-up or other proceeding involving or affecting the Issuers
or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Issuers or any other
Person under this Indenture, the Notes or any other document or instrument;
(c) any failure of the Issuers or any other Guarantor, whether or
not without fault on its part, to perform or comply with any of the provisions
of this Indenture, the Notes or any Note Guarantee, or to give notice thereof to
a Guarantor;
(d) the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy from or against the
Issuers or any other Person or their respective assets or the release or
discharge of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Issuers
or any other Person;
(f) any change in the time, manner or place of payment of, or in
any other term of, any of the Notes, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from, any of
the Notes or this Indenture, including, without limitation, any increase or
decrease in the principal amount of or premium, if any, or interest on any of
the Notes;
(g) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the Issuers or a
Guarantor;
(h) any merger or amalgamation of the Issuers or a Guarantor with
any Person or Persons;
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(i) the occurrence of any change in the laws, rules, regulations
or ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Guarantee Obligations or the obligations of a Guarantor under its Note
Guarantee; and
(j) any other circumstance, including release of a Guarantor
pursuant to Section 11.05 (other than by complete, irrevocable payment) that
might otherwise constitute a legal or equitable discharge or defense of the
Issuers under this Indenture or the Notes or of a Guarantor in respect of its
Note Guarantee hereunder.
SECTION 11.14. WAIVER.
Without in any way limiting the provisions of Section 11.01, each
Guarantor hereby waives notice of acceptance hereof, notice of any liability of
any Guarantor hereunder, notice or proof of reliance by the Holders upon the
obligations of any Guarantor hereunder, and diligence, presentment, demand for
payment on the Issuers, protest, notice of dishonor or non-payment of any of the
Guarantee Obligations, or other notice or formalities to the Issuers or any
Guarantor of any kind whatsoever.
SECTION 11.15. NO OBLIGATION TO TAKE ACTION AGAINST THE ISSUERS.
Neither the Trustee nor any other Person shall have any obligation to
enforce or exhaust any rights or remedies against the Issuers or any other
Person or any property of the Issuers or any other Person before the Trustee is
entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Note Guarantees or under this Indenture.
SECTION 11.16. DEALING WITH THE ISSUERS AND OTHERS.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Issuers or any other
Person;
(b) take or abstain from taking security or collateral from the
Issuers or from perfecting security or collateral of the Issuers;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without consideration)
any and all collateral, mortgages or other security given by the Issuers or any
third party with respect to the obligations or matters contemplated by this
Indenture or the Notes;
(d) accept compromises or arrangements from the Issuers;
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(e) apply all monies at any time received from the Issuers or from
any security upon such part of the Guarantee Obligations as the Holders may see
fit or change any such application in whole or in part from time to time as the
Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal
with, the Issuers and all other Persons and any security as the Holders or the
Trustee may see fit.
SECTION 11.17. DEFAULT AND ENFORCEMENT.
If any Guarantor fails to pay in accordance with Section 11.07 hereof,
the Trustee may proceed in its name as trustee hereunder in the enforcement of
the Note Guarantee of any such Guarantor and such Guarantor's obligations
thereunder and hereunder by any remedy provided by law, whether by legal
proceedings or otherwise, and to recover from such Guarantor the obligations.
SECTION 11.18. ACKNOWLEDGMENT.
Each Guarantor hereby acknowledges communication of the terms of this
Indenture and the Notes and consents to and approves of the same.
SECTION 11.19. COSTS AND EXPENSES.
Each Guarantor shall pay on demand by the Trustee any and all
reasonable costs, fees and expenses (including, without limitation, reasonable
legal fees on a solicitor and client basis) incurred by the Trustee, its agents,
advisors and counsel or any of the Holders in enforcing any of their rights
under any Note Guarantee.
SECTION 11.20. NO MERGER OR WAIVER; CUMULATIVE REMEDIES.
No Note Guarantee shall operate by way of merger of any of the
obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture. No failure to exercise and no delay in exercising,
on the part of the Trustee or the Holders, any right, remedy, power or privilege
hereunder or under this Indenture or the Notes, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Indenture or the Notes preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the Note Guarantee and
under this Indenture, the Notes and any other document or instrument between a
Guarantor and/or the Issuers and the Trustee are cumulative and not exclusive of
any rights, remedies, powers and privilege provided by law.
SECTION 11.21. SURVIVAL OF NOTE GUARANTEE OBLIGATIONS.
Without prejudice to the survival of any of the other obligations of
each Guarantor hereunder, the obligations of each Guarantor under Section 11.01
shall survive the payment in full of the Guarantee Obligations and shall be
enforceable against such Guarantor, to the full-
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est extent permitted by law, without regard to and without giving effect to any
defense, right of offset or counterclaim available to or which may be asserted
by the Issuers or any Guarantor.
SECTION 11.22. NOTE GUARANTEE IN ADDITION TO OTHER GUARANTEE OBLIGATIONS.
The obligations of each Guarantor under its Note Guarantee and this
Indenture are in addition to and not in substitution for any other obligations
to the Trustee or to any of the Holders in relation to this Indenture or the
Notes and any guarantees or security at any time held by or for the benefit of
any of them.
SECTION 11.23. SEVERABILITY.
Any provision of this Article Eleven which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and
purpose of this Indenture and this Article Eleven.
SECTION 11.24. SUCCESSORS AND ASSIGNS.
Each Note Guarantee shall be binding upon and inure to the benefit of
each Guarantor and the Trustee and the other Holders and their respective
successors and permitted assigns, except that no Guarantor may assign any of its
obligations hereunder or thereunder.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this Indenture
by the Trust Indenture Act, such required or deemed provision shall control.
SECTION 12.02. NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by nationally recognized overnight courier service, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
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if to the Issuer or a Guarantor:
c/o Ply Gem Industries, Inc.
303 West Major Street
Kearney, Missouri 64060
Attention: Chief Financial Officer
Telephone: (816) 903-8225
Facsimile: (816) 903-4330
if to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107-2292
Attention: Corporate Trust Department
Telephone: (651) 495-3918
Facsimile: (651) 495-8097
Each of the Issuer and the Trustee by written notice to each other such
Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Issuer and the Trustee, shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when replied to; when receipt is acknowledged, if telecopied; five
(5) calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee); and next Business Day if
by nationally recognized overnight courier service.
Any notice or communication mailed to a Holder shall be mailed to him
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed.
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, it is duly given,
whether or not the addressee receives it.
SECTION 12.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to Trust Indenture Act ss. 312(b) with
other Holders with respect to their rights under this Indenture, the Notes or
the Note Guarantees. The Issuer, the Trustee, the Registrar and any other Person
shall have the protection of Trust Indenture Act ss. 312(c).
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SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent to be performed or effected by the Issuer, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent 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 the Officers' Certificate
required by Section 4.06, 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 or satisfied; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.06. RULES BY PAYING AGENT OR REGISTRAR.
The Paying Agent or Registrar may make reasonable rules and set
reasonable requirements for their functions.
SECTION 12.07. LEGAL HOLIDAYS.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day.
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SECTION 12.08. GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Issuer or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator, stockholder, member or
manager of the Issuer or any Guarantor shall have any liability for any
obligations of the Issuer under the Notes or this Indenture or of any Guarantor
under its Note Guarantee or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. Such waiver and release
are part of the consideration for issuance of the Notes.
SECTION 12.11. SUCCESSORS.
All agreements of the Issuer and the Guarantors in this Indenture, the
Notes and the Note Guarantees shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 12.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture. Each
signed copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 12.13. SEVERABILITY.
To the extent permitted by applicable law, in case any one or more of
the provisions in this Indenture, in the Notes or in the Note Guarantees shall
be held invalid, illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the date first written above.
PLY GEM INDUSTRIES, INC., as Issuer
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: President and Chief Executive
Officer
PLY GEM HOLDINGS, INC., as Guarantor
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: President and Chief Executive
Officer
GREAT LAKES WINDOW, INC., as
Guarantor
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: Vice President
KROY BUILDING PRODUCTS, INC., as
Guarantor
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: Vice President
NAPCO, INC., as Guarantor
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: Vice President
S-1
NAPCO WINDOW SYSTEMS, INC., as
Guarantor
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: Vice President
THERMAL-GARD, INC., as Guarantor
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: Vice President
VARIFORM, INC., as Guarantor
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: Vice President
S-2
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Richard H. Prokosch
---------------------------------------
Name: Richard H. Prokosch
Title: Vice President
S-3
EXHIBIT A
---------
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
PLY GEM INDUSTRIES, INC.
9% Senior Subordinated Notes 2012
CUSIP No.
No. $
PLY GEM INDUSTRIES, INC., a Delaware corporation (the "ISSUER"), for
value received promise to pay to ____________ or its registered assigns, the
principal sum of [or such other amount as is provided in a schedule attached
hereto]1 on February 15, 2012.
Interest Payment Dates: February 15 and August 15, commencing August
15, 2004.
Record Dates: February 1 and August 1.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
- -----------------------------
a This language should be included only if the Note is issued in global form.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Dated: February 12, 2004
PLY GEM INDUSTRIES, INC., as Issuer
By:
---------------------------------------
Name:
Title:
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FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9% Senior Subordinated Notes due 2012 described in
the within-mentioned Indenture.
Dated: February 12, 2004
U.S.BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
Authorized Signatory
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(Reverse of Note)
9% Senior Subordinated Notes due 2012
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
SECTION 1. INTEREST. Ply Gem Industries, Inc., a Delaware
corporation (the "ISSUER") promises to pay interest on the principal amount of
this Note at 9% per annum from February 12, 2004 until maturity. The Issuer will
pay interest semi-annually on February 15 and August 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE"), commencing August 15, 2004. Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance. The Issuer shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand to the extent lawful at the interest rate applicable to the Notes; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2. METHOD OF PAYMENT. The Issuer will pay interest on
the Notes to the Persons who are registered Holders of Notes at the close of
business on the February 1 or August 1 next preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Notes will be issued in denominations of
$1,000 and integral multiples thereof. The Issuer shall pay principal, premium,
if any, and interest on the Notes in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts ("U.S. LEGAL TENDER"). Principal, premium, if any, and interest on
the Notes will be payable at the office or agency of the Issuer maintained for
such purpose except that, at the option of the Issuer, the payment of interest
may be made by check mailed to the Holders of the Notes at their respective
addresses set forth in the register of Holders of Notes; PROVIDED that for
Holders that have given wire transfer instructions to the Issuer at least ten
Business Days prior to the applicable payment date, the Issuer will make all
payments of principal, premium and interest by wire transfer of immediately
available funds to the accounts specified by the Holders thereof. Until
otherwise designated by the Issuer, the Issuer's office or agency in New York
will be the office of the Trustee maintained for such purpose.
SECTION 3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank
National Association, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Issuer may change any Paying Agent or Registrar without
notice to any Holder. Except as provided in the Indenture, the Issuer or any of
their Subsidiaries may act in any such capacity.
SECTION 4. INDENTURE AND SUBORDINATION. The Issuer issued the
Notes under an Indenture dated as of February 12, 2004 ("INDENTURE") by and
among the Issuer, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture and those made
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part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code ss.ss. 77aaa-77bbbb) (the "TRUST INDENTURE ACT"). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the Trust Indenture Act for a statement of such terms. The payment of the
Notes will, to the extent set forth in the Indenture, be subordinated in right
of payment to the prior payment in full in cash or cash equivalents of all
Senior Debt.
SECTION 5. OPTIONAL REDEMPTION. Except as set forth in Section 6
hereof, the Notes will not be redeemable at the Issuer's option prior to
February 15, 2008 (the "FIRST CALL DATE"). On or after the First Call Date, the
Notes will be subject to redemption at any time at the option of the Issuer, 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 thereon, if any, to the applicable Redemption
Date, if redeemed during the twelve-month period beginning on February 15 of the
years indicated below:
YEAR PERCENTAGE
---- ----------
2008............................ 104.50%
2009............................ 102.25%
2010 and thereafter............. 100.00%
SECTION 6. REDEMPTION WITH PROCEEDS FROM EQUITY OFFERINGS OR
UPON A CHANGE OF CONTROL. (a) At any time prior to February 15, 2007, the Issuer
may redeem at its option on any one or more occasions up to 35% of the aggregate
principal amount of Notes issued under the Indenture with the net cash proceeds
of one or more Qualified Equity Offerings at a redemption price equal to 109% of
the principal amount of the Notes to be redeemed, plus accrued and unpaid
interest thereon, if any, to the Redemption Date; PROVIDED that (i) at least 65%
of the aggregate principal amount of Notes issued under the Indenture remains
outstanding immediately after the occurrence of such redemption and (ii) such
redemption shall occur within 90 days of the date of the closing of any such
Qualified Equity Offering.
(b) At any time on or prior to the First Call Date, the Notes may
also be redeemed, in whole but not in part, at the Issuer's option, upon the
occurrence of a Change of Control, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of, and accrued and
unpaid interest, if any, to, the Redemption Date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date). Such redemption or purchase may be made upon
notice mailed by first-class mail to each Holder's registered address, not less
than 30 nor more than 60 days prior to the Redemption Date (but in no event more
than 90 days after the occurrence of such Change of Control). The Issuer may
provide in such notice that payment of such price and performance of the
Issuer's obligations with respect to such redemption may be performed by another
Person. Any such notice may be given prior to the occurrence of the related
Change of Control, and any such redemption or notice may, at the Issuer's
discretion, be subject to the satisfaction of one or more conditions precedent,
including but not limited to the occurrence of the related Change of Control.
(c) At any time prior to the First Call Date, after the completion
of a Change of Control Offer that was accepted by Holders of not less than 75%
of the aggregate principal
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amount of Notes then outstanding, the Issuer may redeem all, but not less than
all, of the Notes not validly tendered in the Change of Control Offer, at a
redemption price equal to 101% of the principal amount, and accrued and unpaid
interest, if any, to the Redemption Date; PROVIDED that such redemption occurs
within 90 days after the completion of such Change of Control Offer.
SECTION 7. NOTICE OF REDEMPTION. Notice of redemption will be
mailed by first class mail at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in part. If
any Note is to be redeemed in part only, the notice of redemption that relates
to such Note shall state the portion of the principal amount thereof to be
redeemed. A new Note in principal amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof upon cancellation of the
original Note. On and after the Redemption Date interest ceases to accrue on
Notes or portions thereof called for redemption.
SECTION 8. MANDATORY REDEMPTION. For the avoidance of doubt, an
offer to purchase pursuant to Section 9 hereof shall not be deemed a redemption.
The Issuer shall not be required to make mandatory redemption payments with
respect to the Notes.
SECTION 9. REPURCHASE AT OPTION OF HOLDER. Upon the occurrence
of a Change of Control, and subject to certain conditions set forth in the
Indenture, the Issuer will be required to offer to purchase all of the
outstanding Notes at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the date of
repurchase.
The Issuer is, subject to certain conditions and exceptions, obligated
to make an offer to purchase Notes at 100% of their principal amount, plus
accrued and unpaid interest, if any, thereon to the date of repurchase, with
certain net cash proceeds of certain sales or other dispositions of assets in
accordance with the Indenture.
SECTION 10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuer may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Issuer and the Registrar are
not required to transfer or exchange any Note selected for redemption. Also, the
Issuer and the Registrar are not required to transfer or exchange any Notes for
a period of 15 days before a selection of Notes to be redeemed.
SECTION 11. PERSONS DEEMED OWNERS. The registered Holder of a
Note may be treated as its owner for all purposes.
SECTION 12. AMENDMENT, SUPPLEMENT AND WAIVER. 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 Notes then outstanding, and any existing Default or compliance
with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Notes then outstanding. Without notice to
or consent of any Holder, the parties thereto may amend or supplement the
Indenture
A-6
and the Notes to, among other things, cure any ambiguity, defect or
inconsistency in the Indenture, provide for uncertificated Notes in addition to
certificated Notes, comply with any requirements of the SEC in connection with
the qualification of the Indenture under the Trust Indenture Act, or make any
change that does not materially adversely affect the rights of any Holder of a
Note.
SECTION 13. DEFAULTS AND REMEDIES. If a Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes generally may declare all the Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of a Default
arising from certain events of bankruptcy or insolvency as set forth in the
Indenture, with respect to the Issuer, all outstanding Notes will become due and
payable without further action or notice. Holders of the Notes may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default (except a Default relating to the payment of principal or interest
including an accelerated payment or the failure to make a payment on the Change
of Control Payment Date or the Net Proceeds Payment Date pursuant to a Net
Proceeds Offer or a Default in complying with the provisions of Article Five of
the Indenture) if it determines that withholding notice is in their interest.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default and its consequences under the Indenture except
a continuing Default in the payment of interest on, or the principal of, or the
premium on, the Notes.
SECTION 14. RESTRICTIVE COVENANTS. The Indenture contains certain
covenants that, among other things, limit the ability of the Issuer and its
Restricted Subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries of the Issuer, to consolidate, merge or sell
all or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important qualifications
and exceptions. The Issuer must annually report to the Trustee on compliance
with such limitations and other provisions in the Indenture.
SECTION 15. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator, stockholder, member or manager of the Issuer or any
Guarantor shall have any liability for any obligations of the Issuer under the
Notes or the Indenture, or of any Guarantor under its Note Guarantee or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
SECTION 16. NOTE GUARANTEES. This Note will be entitled to the
benefits of certain Note Guarantees made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
SECTION 17. TRUSTEE DEALINGS WITH THE ISSUER. Subject to certain
terms, the Trustee under the Indenture, in its individual or any other capacity,
may become the owner or
A-7
pledgee of Notes and may otherwise deal with the Issuer, their Subsidiaries or
their respective Affiliates as if it were not the Trustee.
SECTION 18. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
SECTION 19. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entirety), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
SECTION 20. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES. Pursuant to, but subject to the
exceptions in, the Registration Rights Agreement, the Issuer and the Guarantors
will be obligated to use their commercially reasonable efforts to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for a 9% Senior Subordinated Note due 2012 of the Issuer
which shall have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to this Note (except
that such note shall not be entitled to Additional Interest and shall not
contain terms with respect to transfer restrictions). The Holders shall be
entitled to receive certain Additional Interest in the event such exchange offer
is not consummated or the Notes are not offered for resale and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.2
SECTION 21. CUSIP AND ISIN NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Issuer has caused CUSIP and ISIN numbers to be printed on the Notes and the
Trustee may use CUSIP or ISIN numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
SECTION 22. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture.
- -----------------------------
a This Section not to appear on Exchange Notes or Private Exchange Notes or
Additional Notes unless required by the terms of such Additional Notes.
A-8
ASSIGNMENT FORM
I or we assign and transfer this Note to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________ agent to
transfer this Note on the books of the Issuer. The agent may substitute another
to act for him.
Dated: _________________ Signed: __________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee: _______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
In connection with any transfer of this Note occurring prior to the
date which is the date following the second anniversary of the original issuance
of this Note, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and is
making the transfer pursuant to one of the following:
[CHECK ONE]
(1) ___ to the Issuer or a subsidiary thereof; or
(2) ___ to a person who the transferor reasonably believes is a "qualified
institutional buyer" pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"); or
(3) ___ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished
to the Trustee a signed letter containing certain representations and
agreements (the form of which letter can be obtained from the Trustee);
or
(4) ___ outside the United States to a non-"U.S. person" as defined in Rule 902
of Regulation S under the Securities Act in compliance with Rule 904 of
Regulation S under the Securities Act; or
(5) ___ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act or pursuant to another exemption available under the
Securities Act; or
(6) ___ pursuant to an effective registration statement under the Securities
Act.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Issuer as defined in Rule 144
under the Securities Act (an "Affiliate"):
[_] The transferee is an Affiliate of the Issuer.
Unless one of the foregoing items (1) through (6) is checked, the
Trustee will refuse to register any of the Notes evidenced by this certificate
in the name of any person other than the registered Holder thereof; PROVIDED,
HOWEVER, that if item (3), (4) or (5) is checked, the Issuer or the Trustee may
require, prior to registering any such transfer of the Notes, in their sole
discretion, such written legal opinions, certifications (including an investment
letter in the case of box (3) or (4)) and other information as the Trustee or
the Issuer has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing items (1) through (6) are checked, the Trustee
or 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 of registration set forth herein and in Section 2.16 of the Indenture
shall have been satisfied.
Dated: _________________ Signed: __________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee: _______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
TO BE COMPLETED BY PURCHASER IF (2) 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
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 Issuer 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.
-2-
Dated: _________________ ________________________________________
NOTICE: To be executed by an executive
officer
-3-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant
to Section 4.09 or Section 4.13 of the Indenture, check the appropriate box:
Section 4.09 [_] Section 4.13 [_]
If you want to elect to have only part of this Note purchased by the
Issuer pursuant to Section 4.09 or Section 4.13 of the Indenture, state the
amount (in denominations of $1,000 and integral multiples thereof): $___________
Dated: _________________ Signed: __________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee: _______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
-4-
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE3
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Physical Note, or exchanges of a part of another
Global Note or Physical Note for an interest in this Global Note, have been
made:
PRINCIPAL AMOUNT OF SIGNATURE OF
AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN THIS GLOBAL NOTE AUTHORIZED OFFICER OF
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF FOLLOWING SUCH DECREASE TRUSTEE OR NOTE
DATE OF EXCHANGE THIS GLOBAL NOTE THIS GLOBAL NOTE (OR INCREASE) CUSTODIAN
- ---------------- ---------------- ---------------- ------------- ---------
- -----------------------------
a This schedule should be included only if the Note is issued in global form.
-5-
EXHIBIT B
---------
FORM OF LEGENDS
Each Global Note and Physical Note that constitutes a Restricted
Security shall bear the following legend (the "Private Placement Legend") on the
face thereof until after the second anniversary of the Issue Date, unless
otherwise agreed by the Issuer and the Holder thereof or if such legend is no
longer required by Section 2.16(g) of the Indenture:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5
OF THE U.S. SECURITIES ACT OF 1933, AND THE SECURITY EVIDENCED BY THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF REGISTRATION OR AN APPLICABLE EXEMPTION FROM THE SECURITIES
ACT. EACH PURCHASER OF THE SECURITY EVIDENCED BY THIS CERTIFICATE (1) BY
ITS ACQUISITION OF THE SECURITY 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 BY THIS
CERTIFICATE 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 OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
THE HOLDER OF THE SECURITY EVIDENCED BY THIS CERTIFICATE AGREES FOR THE
BENEFIT OF THE ISSUER AND THE GUARANTORS THAT (X) THIS SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(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, IF AVAILABLE, OR ANOTHER AVAILABLE
EXEMPTION 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 REGULATION S
UNDER THE SECURITIES ACT, (D) TO AN ACCREDITED INVESTOR (WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") THAT IS PURCHASING AT LEAST $250,000
OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL
ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO
REQUESTS), (2) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES OR (3) UNDER AN
EFFECTIVE REGISTRATION
B-1
STATEMENT AND, IN EACH CASE, IN COMPLIANCE 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 BY THIS CERTIFICATE OF THE
RESALE RESTRICTIONS DESCRIBED IN (X) ABOVE. IN CONNECTION WITH ANY TRANSFER
OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY OR IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
AND THE ISSUER 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 IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Each Global Note authenticated and delivered hereunder shall also bear
the following legend:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS
NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
B-2
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 SECTION 2.16 OF THE INDENTURE.
Each Temporary Regulation S Global Note shall also bear the following
legend:
"THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE
OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE
REFERRED TO BELOW.
"NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE."
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EXHIBIT C
---------
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[ ], [ ]
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107-2292 T: (651) 495-3918 F: (651) 495-8097
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed purchase of 9% Senior Subordinated
Notes due 2012 (the "NOTES") of PLY GEM INDUSTRIES, INC., a Delaware corporation
(the "ISSUER"), we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes (the "Indenture") and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes except
in compliance with, such restrictions and conditions and the Securities Act
of 1933, as amended (the "Securities Act"), and all applicable state
securities laws.
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be
offered, sold, pledged or otherwise transferred except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we should
sell, offer, pledge or otherwise transfer any Notes, we will do so only (i)
to the Issuer or any of its subsidiaries, (ii) inside the United States in
a transaction meeting the requirements of Rule 144A under the Securities
Act to a person who we reasonably believe to be a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act), (iii) inside the
United States to an institutional "accredited investor" (as defined below)
that is purchasing at least $250,000 of Notes for its own account or for
the account of an institutional accredited investor and who, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to the Trustee (as defined in the Indenture) a signed letter
containing certain representations and agreements relating to the
restrictions on transfer of the Notes (the form of which letter can be
obtained from the Trustee), (iv) outside the United States to a person that
is not a U.S. person (as defined in Rule 902 under the Securities Act) in
accordance with Regulation S promulgated under the Securities Act, (v)
pursuant to the exemption from registration provided by Rule 144
C-1
under the Securities Act (if available) or another available exemption
under the Securities Act or (vi) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser
that resales of the Notes are restricted as stated herein.
3. We are not acquiring the Notes for or on behalf of, and will
not transfer the Notes to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974, as
amended) or plan (as defined in Section 4975 of the Internal Revenue Code
of 1986, as amended), except as permitted in the section entitled "Notice
to Investors" of the Offering Memorandum.
4. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Trustee and the Issuer such
certification, legal opinions and other information as the Trustee and the
Issuer may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
6. We are acquiring the Notes purchased by us for our account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
C-2
You, as Trustee, the Issuer, counsel for the Issuer and others 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
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ________________________________________
Name:
Title:
C-3
EXHIBIT D
---------
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
------------------------
[ ], [ ]
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107-2292 T: (651) 495-3918 F: (651) 495-8097
Attention: [Corporate Trust Department]
Re: PLY GEM INDUSTRIES, INC. (THE "ISSUER")
9% SENIOR SUBORDINATED NOTES DUE 2012 (THE "NOTES")
---------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal amount
of the Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer 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, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You, as Trustee, the Issuer, counsel for the Issuer and others are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any inter-
D-1
ested 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
D-2
EXHIBIT E
---------
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANS-
FERS OF TEMPORARY REGULATION S GLOBAL NOTE
___________________,_______
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107-2292 T: (651) 495-3918 F: (651) 495-8097
Attention: [Corporate Trust Department]
Re: PLY GEM INDUSTRIES, INC. (THE "ISSUER")
9% SENIOR SUBORDINATED NOTES DUE 2012 (THE "NOTES")
---------------------------------------------------
Dear Sirs:
This letter relates to U.S. $ ______________ principal amount of Notes
represented by a certificate (the "LEGENDED CERTIFICATE") which bears a legend
outlining restrictions upon transfer of such Legended Certificate. Pursuant to
Section 2.16(c) of the Indenture (the "INDENTURE") dated as of February 12, 2004
relating to the Notes, we hereby certify that we are (or we will hold such
securities on behalf of) a person outside the United States (or to an Initial
Purchaser (as defined in the Indenture)) to whom the Notes could be transferred
in accordance with Rule 904 of Regulation S promulgated under the U.S.
Securities Act of 1933, as amended.
You, as Trustee, the Issuer, counsel for the Issuer and others 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 letter have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By: ________________________________________
Authorized Signature
E-1
EXHIBIT F
---------
NOTE GUARANTEE
For value received, each of the undersigned (including any successor
Person under the Indenture) hereby unconditionally guarantees, jointly and
severally, to the extent set forth in the Indenture (as defined below) to the
Holder of this Note the payment of principal, premium, if any, and interest on
this Note in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note when due, if
lawful, and, to the extent permitted by law, the payment or performance of all
other obligations of the Issuer under the Indenture or the Notes, to the Holder
of this Note and the Trustee, all in accordance with and subject to the terms
and limitations of this Note, the Indenture, including Article Eleven thereof,
and this Note Guarantee. This Note Guarantee will become effective in accordance
with Article Eleven of the Indenture and its terms shall be evidenced therein.
The validity and enforceability of any Note Guarantee shall not be affected by
the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Indenture dated as of February 12, 2004, among Ply Gem
Industries, Inc., a Delaware corporation (the "Issuer"), the Guarantors named
therein and U.S. Bank National Association, as trustee (the "Trustee"), as
amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Note Guarantee and the Indenture are expressly set
forth in Article Eleven of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Note Guarantee and all of the other
provisions of the Indenture to which this Note Guarantee relates.
No director, officer, employee, incorporator, stockholder, member or
manager of any Guarantor, as such, shall have any liability for any obligations
of such Guarantors under such Guarantors' Note Guarantee or the Indenture or for
any claim based on, in respect of, or by reason of, such obligation or its
creation.
This Note Guarantee is subordinated in right of payment, in the manner
and to the extent set forth in Article Eleven of the Indenture, to the prior
payment in full in cash or cash equivalents of all Guarantor Senior Debt of the
Guarantors, whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed.
THIS NOTE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
This Note Guarantee is subject to release upon the terms set forth in
the Indenture.
F-1
IN WITNESS WHEREOF, each Guarantor has caused its Note Guarantee to be
duly executed.
Date:
[ ]
By: ________________________________________
Name:
Title:
F-2