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EXHIBIT 4.7
EXECUTION COPY
NEENAH CORPORATION
11-1/8% Series C Senior Subordinated Notes due 2007
Obligations to be guaranteed by Neenah Transport, Inc. and
Hartley Controls Corporation
INDENTURE
Dated as of July 1, 1997
Trustee,
United States Trust Company of New York
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions ................................................ 1
SECTION 1.02. Other Definitions .......................................... 29
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act ............................................ 30
SECTION 1.04. Rules of Construction ...................................... 30
ARTICLE II
The Securities
SECTION 2.01. Form and Dating ............................................ 31
SECTION 2.02. Execution and Authentication ............................... 32
SECTION 2.03. Registrar and Paying Agent ................................. 33
SECTION 2.04. Paying Agent To Hold Money in Trust ........................ 34
SECTION 2.05. Securityholder Lists ....................................... 35
SECTION 2.06. Transfer and Exchange ...................................... 35
SECTION 2.07. Replacement Securities ..................................... 36
SECTION 2.08. Outstanding Securities ..................................... 37
SECTION 2.09. Temporary Securities ....................................... 37
SECTION 2.10. Cancellation ............................................... 38
SECTION 2.11. Defaulted Interest ......................................... 38
SECTION 2.12. CUSIP Numbers .............................................. 38
SECTION 2.13. Book-Entry Provisions for U.S. Global
Security ................................................. 39
SECTION 2.14. Special Transfer Provisions ................................ 40
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee ......................................... 46
SECTION 3.02. Selection of Securities
to be Redeemed ........................................... 46
SECTION 3.03. Notice of Redemption ....................................... 47
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SECTION 3.04. Effect of Notice of Redemption ............................. 48
SECTION 3.05. Deposit of Redemption Price ................................ 48
SECTION 3.06. Securities Redeemed in Part ................................ 48
SECTION 3.07. Optional Redemption ........................................ 48
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities ...................................... 50
SECTION 4.02. SEC Reports ................................................ 50
SECTION 4.03. Limitation on Indebtedness ................................. 50
SECTION 4.04. Limitation on Restricted Payments .......................... 54
SECTION 4.05. Limitation on Restrictions on
Distributions from Subsidiaries .......................... 57
SECTION 4.06. Limitation on Sales of Assets and
Subsidiary Stock ......................................... 60
SECTION 4.07. Limitation on Transactions with
Affiliates ............................................... 64
SECTION 4.08. Change of Control .......................................... 65
SECTION 4.09. Compliance Certificate ..................................... 67
SECTION 4.10. Further Instruments and Acts ............................... 67
SECTION 4.11. Limitation on the Sale or Issuance of
Capital Stock of Restricted
Subsidiaries ............................................. 67
SECTION 4.12. Limitation on Liens ........................................ 67
SECTION 4.13. Limitation on Sale/Leaseback
Transactions ............................................. 68
SECTION 4.14. Limitation on Lines of Business ............................ 68
SECTION 4.15. Future Guarantor Subsidiaries .............................. 68
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer
Assets ................................................... 69
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default .......................................... 70
SECTION 6.02. Acceleration ............................................... 72
SECTION 6.03. Other Remedies ............................................. 73
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SECTION 6.04. Waiver of Past Defaults .................................... 73
SECTION 6.05. Control by Majority ........................................ 73
SECTION 6.06. Limitation on Suits ........................................ 74
SECTION 6.07. Rights of Holders to
Receive Payment .......................................... 74
SECTION 6.08. Collection Suit by Trustee ................................. 74
SECTION 6.09. Trustee May File Proofs of Claim ........................... 75
SECTION 6.10. Priorities ................................................. 75
SECTION 6.11. Undertaking for Costs ...................................... 76
SECTION 6.12. Waiver of Stay or Extension Laws ........................... 76
SECTION 6.13. Restoration of Rights and Remedies ......................... 76
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee .......................................... 76
SECTION 7.02. Rights of Trustee .......................................... 78
SECTION 7.03. Individual Rights of Trustee ............................... 79
SECTION 7.04. Trustee's Disclaimer ....................................... 79
SECTION 7.05. Notice of Defaults ......................................... 79
SECTION 7.06. Reports by Trustee to Holders .............................. 79
SECTION 7.07. Compensation and Indemnity ................................. 80
SECTION 7.08. Replacement of Trustee ..................................... 81
SECTION 7.09. Successor Trustee by Merger ................................ 82
SECTION 7.10. Eligibility; Disqualification .............................. 82
SECTION 7.11. Preferential Collection of Claims
Against Company .......................................... 82
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance ............................................... 83
SECTION 8.02. Conditions to Defeasance ................................... 84
SECTION 8.03. Application of Trust Money ................................. 85
SECTION 8.04. Repayment to Company ....................................... 86
SECTION 8.05. Indemnity for Government
Obligations .............................................. 86
SECTION 8.06. Reinstatement .............................................. 86
SECTION 8.07. Concurrent Defeasance of Securities
and Original Securities .................................. 86
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ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders ................................. 87
SECTION 9.02. With Consent of Holders .................................... 87
SECTION 9.03. Compliance with Trust Indenture Act ........................ 89
SECTION 9.04. Revocation and Effect of Consents and
Waivers .................................................. 89
SECTION 9.05. Notation on or Exchange
of Securities ............................................ 90
SECTION 9.06. Trustee to Sign Amendments ................................. 90
SECTION 9.07. Payment for Consent ........................................ 90
ARTICLE X
Subordination of the Securities
SECTION 10.01. Agreement to Subordinate .................................. 90
SECTION 10.02. Liquidation, Dissolution, Bankruptcy ...................... 91
SECTION 10.03. Default on Senior Indebtedness of
the Company ............................................. 91
SECTION 10.04. Acceleration of Payment of Securities ..................... 92
SECTION 10.05. When Distribution Must Be Paid Over ....................... 93
SECTION 10.06. Subrogation ............................................... 93
SECTION 10.07. Relative Rights ........................................... 93
SECTION 10.08. Subordination May Not Be Impaired by
Company ................................................. 93
SECTION 10.09. Rights of Trustee and Paying Agent ........................ 94
SECTION 10.10. Distribution or Notice to Representative .................. 94
SECTION 10.11. Article X Not To Prevent Events of Default or Limit
Right To Accelerate ..................................... 94
SECTION 10.12. Trust Moneys Not Subordinated ............................. 94
SECTION 10.13. Trustee Entitled to Rely .................................. 95
SECTION 10.14. Trustee to Effectuate Subordination ....................... 95
SECTION 10.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness of the Company ...................... 96
SECTION 10.16. Reliance by Holders of Senior
Indebtedness of the Company on
Subordination Provisions ................................ 96
SECTION 10.17. Trustee's Compensation Not Prejudiced ..................... 96
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ARTICLE XI
Subsidiary Guaranties
SECTION 11.01. Subsidiary Guaranties .................................... 96
SECTION 11.02. Limitation on Liability .................................. 98
SECTION 11.03. Successors and Assigns ................................... 99
SECTION 11.04. No Waiver ................................................ 99
SECTION 11.05. Modification ............................................. 99
SECTION 11.06. Execution of Supplemental Indenture
for Future Guarantor Subsidiaries ...................... 100
ARTICLE XII
Subordination of the Subsidiary Guaranties
SECTION 12.01. Agreement to Subordinate ................................. 100
SECTION 12.02. Liquidation, Dissolution, Bankruptcy ..................... 100
SECTION 12.03. Default on Senior Indebtedness of a
Guarantor Subsidiary ................................... 101
SECTION 12.04. Demand for Payment ....................................... 102
SECTION 12.05. When Distribution Must Be Paid Over ...................... 102
SECTION 12.06. Subrogation .............................................. 103
SECTION 12.07. Relative Rights .......................................... 103
SECTION 12.08. Subordination May Not Be Impaired by a
Guarantor Subsidiary ................................... 103
SECTION 12.09. Rights of Trustee and Paying Agent ....................... 103
SECTION 12.10. Distribution or Notice to Representative ................. 104
SECTION 12.11. Article XII Not To Prevent Events
of Default or Limit
Right To Accelerate .................................... 104
SECTION 12.12. Trustee Entitled to Rely ................................. 104
SECTION 12.13. Trustee to Effectuate Subordination ...................... 105
SECTION 12.14. Trustee Not Fiduciary for Holders of
Senior Indebtedness of a Guarantor
Subsidiary ............................................. 105
SECTION 12.15. Reliance by Holders of Senior
Indebtedness of a Guarantor Subsidiary
on Subordination Provisions ............................ 105
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ARTICLE XIII
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls ............................. 106
SECTION 13.02. Notices .................................................. 106
SECTION 13.03. Communication by Holders with Other
Holders ................................................ 107
SECTION 13.04. Certificate of Opinion as to Conditions
Precedent .............................................. 107
SECTION 13.05. Statements Required in Certificate or
Opinion ................................................ 107
SECTION 13.06. When Securities Disregarded .............................. 108
SECTION 13.07. Rules by Trustee, Paying Agent and
Registrar .............................................. 108
SECTION 13.08. Legal Holidays ........................................... 108
SECTION 13.09. Governing Law ............................................ 108
SECTION 13.10. No Recourse Against Others ............................... 108
SECTION 13.11. Successors ............................................... 109
SECTION 13.12. Multiple Originals ....................................... 109
SECTION 13.13. Table of Contents; Headings .............................. 109
Exhibit A - Form of Face of Initial Security
Exhibit B - Form of Face of Exchange Security
Exhibit C - Form of Transferee Letter of Representation
Exhibit D - Form of Supplemental Indenture
Exhibit E - Form of Certificate to be Delivered upon
Termination of Restricted Period
Exhibit F - Form of Certificate to be Delivered in Connection
with Transfers to Non-QIB Institutional Accredited
Investors
Exhibit G - Form of Certificate to be Delivered in Connection
with Transfers pursuant to Regulation S
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CROSS-REFERENCE ABLE
TIA Indenture
Section Section
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310(a)(1) ..................................................... 7.10
(a)(2) ..................................................... 7.10
(a)(3) ..................................................... N.A.
(a)(4) ..................................................... N.A.
(b) ........................................................ 7.08; 7.10
(c) ........................................................ N.A.
311(a) ........................................................ 7.11
(b) ........................................................ 7.11
(c) ........................................................ N.A.
312(a) ........................................................ 2.05
(b) ........................................................ 11.03
(c) ........................................................ 11.03
313(a) ........................................................ 7.06
(b)(1) ..................................................... N.A.
(b)(2) ..................................................... 7.06
(c) ........................................................ 11.02
(d) ........................................................ 7.06
314(a) ........................................................ 4.02; 4.09;
11.02
(b) ........................................................ N.A.
(c)(1) ..................................................... 11.04
(c)(2) ..................................................... 11.04
(c)(3) ..................................................... N.A.
(d) ........................................................ N.A.
(e) ........................................................ 13.05
(f) ........................................................ 4.12
315(a) ........................................................ 7.01
(b) ........................................................ 7.05; 11.02
(c) ........................................................ 7.01
(d) ........................................................ 7.01
(e) ........................................................ 6.11
316(a)(last
sentence) ..................................................... 13.06
(a)(1)(A) .................................................. 6.05
(a)(1)(B) .................................................. 6.04
(a)(2) ..................................................... N.A.
(b) ........................................................ 6.07
317(a)(1) ..................................................... 6.08
(a)(2) ..................................................... 6.09
(b) ........................................................ 2.04
318(a) ........................................................ 11.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
CONFORMED COPY
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INDENTURE dated as of July 1, 1997, among NEENAH
CORPORATION, a Wisconsin corporation (the "Company")
Neenah Transport, Inc. and Hartley Controls Corporation
each a Wisconsin Corporation (the "Initial Guarantors"),
and United States Trust Company of New York, a New York
banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 11-1/8%
Series C Senior Subordinated Notes due 2007 (the "Initial Securities") and, when
and if issued pursuant to a registered exchange for Initial Securities, the
Company's 11-1/8% Series D Senior Subordinated Notes due 2007 (the "Exchange
Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"ACP Holdings" means ACP Holding Company, a Delaware corporation.
"ACP Products, L.L.C." means ACP Products, L.L.C., a Delaware
limited liability company.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock), including improvements to existing assets, to
be used by the Company or a Restricted Subsidiary in a Related Business; (ii)
the Capital Stock of a Person that becomes a Restricted Subsidiary as a result
of the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or (iii) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary; provided, however, that, in
the case of clauses (ii) and (iii), such Restricted Subsidiary is primarily
engaged in a Related Business.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
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definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Section 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Applicable Premium" means, with respect to a Security, the
greater of (i) 1.0% of the then outstanding principal amount of such Security
and (ii) the excess of (A) the present value of all remaining required interest
and principal payments due on such Security, computed using a discount rate
equal to the Treasury Rate plus 75 basis points, over (B) the then outstanding
principal amount of such Security.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), property or assets (each referred to for the
purposes of this definition as a "disposition") by the Company or any of its
Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction) other than: (i) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary; (ii) a disposition of inventory, in the
ordinary course of business consistent with past practices of the Company and
its Subsidiaries and (iii) dispositions with a fair market value of less than
$500,000 in the aggregate in any fiscal year; (iv) a disposition of properties
and assets that is governed by the provisions of Section 5.01(i)-(v); and (v)
for purposes of Section 4.06 only, a disposition subject to Section 4.04.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate assumed in making calculations in accordance with FAS 13) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
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"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (ii) the sum of
all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Senior Bank Facilities or any refinancing or replacements thereof
including principal, premium (if any), interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not a claim for post-filing interest is allowed in
such proceeding), fees, charges, expenses, reimbursement obligations, guarantees
and all other amounts payable thereunder or in respect thereof.
"Board of Directors" means the Board of Directors of the Company
or any committee thereof duly authorized to act on behalf of such Board.
"Borrowing Base" means, as of the date of determination, an
amount equal to the sum, without duplication, of (i) 80% of the net book value
of the Company's accounts receivable at such date and (ii) 50% of the net book
value of the Company's inventories at such date. Net book value shall be
determined in accordance with GAAP and shall be that reflected on the most
recent available balance sheet (it being understood that the accounts receivable
and inventories of an acquired business may be included if such acquisition has
been completed on or prior to the date of determination).
"Business Day" means a day other than a Saturday, Sunday or other
day on which banking institutions in New York State are authorized or required
by law to close.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted
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for as a capitalized lease for financial reporting purposes in accordance with
GAAP. The amount of Indebtedness represented by a Capitalized Lease Obligation
shall be the capitalized amount of such obligation determined in accordance with
GAAP, and the Stated Maturity thereof shall be the date of the last scheduled
payment of rent or any other amount due under the relevant lease.
"Change of Control" means the occurrence of any of the following
events:
(a) prior to the earlier to occur of the first public offering of
Voting Stock of ACP Holdings, the Company or Holdings, the Permitted
Holders cease to be entitled (by "beneficial ownership" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act) of Voting Stock, contract
or otherwise) to elect or cause the election of directors of the Company
having a majority of the total voting power of the Board of Directors of
the Company, whether as a result of issuance of securities of the
Company, any merger, consolidation, liquidation or dissolution of the
Company, any direct or indirect transfer of securities by any Permitted
Holder or otherwise (for purposes of this clause (a), the Permitted
Holders shall be deemed to beneficially own any Voting Stock of a
corporation (the "specified corporation") held by any other corporation
(the "parent corporation") so long as one or more of the Permitted
Holders beneficially own (as so defined), directly or indirectly, in the
aggregate a majority of the voting power of the Voting Stock of the
parent corporation);
(b) after the first public offering of Voting Stock of ACP
Holdings, the Company or Holdings, any person or group (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), other than
one or more of the Permitted Holders, is or becomes the beneficial owner
(as defined in clause (a) above), directly or indirectly, of Voting
Stock that represents more than 40% of the aggregate ordinary voting
power of all classes of the Voting Stock of ACP Holdings, the Company or
Holdings, voting together as a single class, and either (x) the
Permitted Holders beneficially own (as defined in clause (a) above),
directly or indirectly, in the aggregate Voting Stock that represents a
lesser percentage of the aggregate ordinary voting power of all classes
of the Voting Stock of ACP Holdings, the Company or Holdings, as the
case may be, voting together as a single class, than
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such other person or group and are not entitled (by voting power,
contract or otherwise) to elect directors of ACP Holdings, the Company
or Holdings having a majority of the total voting power of the board of
directors of ACP Holdings, Holdings or the Company, as the case may be,
or (y) such other person or group is entitled to elect directors of ACP
Holdings, the Company or Holdings having a majority of the total voting
power of the board of directors of ACP Holding, Holdings or the Company;
(c) after the first public offering of Voting Stock of ACP
Holdings, Holdings or the Company, during any period of not greater than
two consecutive years beginning after the Issue Date, individuals who at
the beginning of such period constituted the board of directors of ACP
Holdings, Holdings or the Company, as the case may be (together with any
new directors whose election by such board of directors or whose
nomination for election by shareholders was approved by the Permitted
Holders or by such board of directors, in each case by a vote of a
majority of the directors of ACP Holdings, the Company or Holdings, as
the case may be, 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 have a majority of
the total voting power of the board of directors of ACP Holdings,
Holdings or the Company, as the case may be; or
(d) any sale, lease, or other transfer (in one transaction or in
a series of related transactions) is made by the Company or its
Restricted Subsidiaries of all or substantially all of the consolidated
assets of the Company and its Restricted Subsidiaries to any Person.
"Citicorp" means Citicorp, a Delaware corporation.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Agreement" means one or more of the following
agreements entered into by a Person and one or more financial institutions:
commodity future contracts, forward contracts, options or other similar
arrangements or agreements designed to protect against fluctuations in the price
of, or the shortage of supply of, commodities from time to time.
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"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, means the successor and, for purposes of any provision
contained herein and required by the TIA, each other obligor on the indenture
securities.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days prior to the
date of such determination (determined, for the four fiscal quarters ending
prior to the Original Issue Date, or any thereof, on a pro forma basis to give
effect to the Neenah Merger as if it had occurred at the beginning of such
period) to (ii) Consolidated Interest Expense for such four fiscal quarters
(determined, for the four fiscal quarters ending prior to the Original Issue
Date, or any thereof, on a pro forma basis to give effect to the Neenah Merger
as if it had occurred at the beginning of such period); provided, however, that
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding
on such date of determination or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such
Indebtedness and the application of the proceeds thereof as if such
Indebtedness had been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of such new Indebtedness as if
such discharge had occurred on the first day of such period (except that
in the case of Indebtedness to finance seasonal fluctuations in working
capital needs Incurred under a revolving credit or similar arrangement,
the amount thereof shall be deemed to be the average daily balance of
such Indebtedness during such four quarter period);
(2) if since the beginning of such period the Company or any
Restricted Subsidiary shall have disposed of any assets constituting all
or substantially all of the assets of an operating unit of a business (a
"Disposal"), (x) the EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly attributable to the
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assets which are the subject of such Disposal for such period or
increased by an amount equal to the EBITDA (if negative) directly
attributable thereto for such period and (y) Consolidated Interest
Expense for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness
of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its
continuing Restricted Subsidiaries in connection with such Disposal for
such period (or, if the Capital Stock of any Restricted Subsidiary is
sold, the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
(3) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction causing
a calculation to be made hereunder, which constitutes all or
substantially all of the assets of an operating unit of a business,
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness in connection therewith) as if such
Investment or acquisition occurred on the first day of such period; and
(4) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Disposal or any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (2) or
(3) above if made by the Company or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving pro forma effect thereto as if such Disposal,
Investment or acquisition of assets occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to
be given to an acquisition of assets, the
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amount of income or earnings relating thereto and the amount of Consolidated
Interest Expense associated with any Indebtedness Incurred in connection
therewith, the pro forma calculations shall be determined in good faith by a
responsible financial or accounting Officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term as at the date
of determination in excess of 12 months). If any Indebtedness bears, at the
option of the Company or a Restricted Subsidiary, a fixed or floating rate of
interest and is being given pro forma effect, then (i) if any interest had
accrued on such Indebtedness prior to the date of determination, the interest
expense on such Indebtedness shall be computed by applying a fixed or floating
rate of interest as selected by the Company or such Restricted Subsidiary for
the interest period immediately preceding such determination or (ii) if no
interest accrued on such Indebtedness prior to the date of determination, the
interest expense on such Indebtedness shall be computed by applying, at the
option of the Company or such Restricted Subsidiary, either a fixed or floating
rate. If any Indebtedness which is being given pro forma effect was Incurred
under a revolving credit facility that was in effect throughout the applicable
period, the interest expense on such Indebtedness shall be computed based upon
the average daily balance of such Indebtedness during the applicable period.
"Consolidated Interest Expense" means, for any period, the total
consolidated interest expense of the Company and its Restricted Subsidiaries for
such period, plus, to the extent Incurred by the Company and its Restricted
Subsidiaries in such period but not included in such interest expense: (i)
interest expense attributable to Capitalized Lease Obligations and Attributable
Debt; (ii) amortization of debt discount; (iii) capitalized interest; (iv)
noncash interest expense; (v) commissions, discounts and other fees and charges
with respect to letters of credit and bankers' acceptance financing; (vi) net
costs associated with Interest Rate Agreements; (vii) the interest portion of
any deferred payment obligation for goods or services; (viii) interest actually
paid by the Company or any Restricted Subsidiary on any Indebtedness of any
other Person that is Guaranteed by the Company or any Restricted Subsidiary;
(ix) the cash contributions to any employee
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stock ownership plan or similar trust to the extent such contributions are used
by such plan or trust to pay interest or fees to any Person (other than the
Company or a Wholly Owned Subsidiary) in connection with Indebtedness Incurred
by such plan or trust; and (x) the earned discount or yield with respect to the
sale of receivables (without duplication of amounts included in Consolidated Net
Income); but in no event shall include (i) amortization of debt issuance costs;
(ii) Preferred Stock dividends in respect of all Preferred Stock of Subsidiaries
of the Company and Disqualified Stock of the Company held by Persons other than
the Company or a Wholly Owned Subsidiary; or (iii) interest Incurred in
connection with Investments in discontinued operations.
"Consolidated Net Income" means, for any period, the consolidated
net income (loss) of the Company and its Subsidiaries for such period; provided,
however, that there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that (A) subject to the limitations
contained in clause (iv) below, the Company's equity in the net income
of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to a Restricted Subsidiary,
to the limitations contained in clause (iii) below) and (B) the
Company's equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included in
determining such Consolidated Net Income;
(ii) for purposes of Section 4.04(a)(3)(A) only, any net income
(loss) of any person acquired by the Company or a Subsidiary in a
pooling of interests transaction for any period prior to the date of
such acquisition;
(iii) any net income (loss) of any Restricted Subsidiary if such
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that (A)
subject to the limitations contained in (iv) below, the Company's equity
in the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net
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Income up to the aggregate amount of cash that could have been
distributed by such Restricted Subsidiary during such period to the
Company or another Restricted Subsidiary as a dividend (subject, in the
case of a dividend that could have been made to another Restricted
Subsidiary, to the limitation contained in this clause) and (B) the
Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net
Income;
(iv) any gain (or loss) realized upon the sale or other
disposition of any asset of the Company or its Consolidated Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) which is not sold
or otherwise disposed of in the ordinary course of business and any gain
(or loss) realized upon the sale or other disposition of any Capital
Stock of any Person;
(v) any extraordinary gain or loss; and
(vi) the cumulative effect of a change in accounting principles
after the Original Issue Date.
Notwithstanding the foregoing, for the purpose of Section 4.04
only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets from Unrestricted
Subsidiaries to the Company or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments
permitted under Section 4.04(a)(3)(D). Notwithstanding anything to the contrary
in Section 4.04, all amounts paid to Holdings pursuant to Section 4.04(b)(xi)(B)
shall be deducted in computing Consolidated Net Income.
"Consolidated Net Worth" means the total of the amounts shown on
the balance sheet of the Company and the Restricted Subsidiaries, determined on
a Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (i) the par or stated value
of all outstanding Capital Stock of the Company plus (ii) paid-in capital or
capital surplus relating to such Capital Stock plus (iii) any retained earnings
or earned surplus less (A) any accumulated deficit and (B) any amounts
attributable to Disqualified Stock.
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"Consolidated Non-Cash Charges" of any Person means, for any
period, the aggregate depreciation, amortization and other non-cash charges of
such Person and its Consolidated Subsidiaries for such period, on a Consolidated
basis, as determined in accordance with GAAP (excluding any such other non-cash
charge which requires an accrual or reserve for cash charges for any future
period).
"Consolidation" means the consolidation of the accounts of each
of the Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary in an Unrestricted Subsidiary shall
be accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement as to which such Person is a party or a beneficiary.
"CVC" means Citicorp Venture Capital, Ltd., a New York
corporation.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Securities" means Securities that are in the form of
Exhibit A or Exhibit B attached hereto that do not include the information
called for by footnote 1 thereof.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
as the Depositary with respect to the Securities, until a successor shall have
been appointed and becomes such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness
and (ii) any other Senior Indebtedness of the Company which, at the date of
determination, has an aggregate principal amount outstanding of, or under which,
at the date of determination, the holders thereof are committed to lend at least
$25,000,000 and is specifically designated by the Company in the instrument
evidencing or
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12
governing such Senior Indebtedness as "Designated Senior Indebtedness" for
purposes of this Indenture.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (i) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise; (ii) is convertible or exchangeable for
Indebtedness or Disqualified Stock; or (iii) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to ninety-one days
after the Stated Maturity of the Securities. Disqualified Stock shall not
include any Capital Stock that is not otherwise Disqualified Stock if by its
terms the holders have the right to require the issuer to repurchase such stock
upon a Change of Control (or upon events substantially similar to a Change of
Control).
"Domestic Subsidiary" means a Subsidiary that is incorporated or
organized under the laws of the United States of America, any state thereof or
the District of Columbia.
"EBITDA" for any period means the Consolidated Net Income for
such period, plus the following to the extent deducted in calculating such
Consolidated Net Income: (i) income tax expense; (ii) Consolidated Interest
Expense; and (iii) Consolidated Non-Cash Charges, in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization of, a Subsidiary of the
Company shall be added to Consolidated Net Income to compute EBITDA only to the
extent (and in the same proportion) that the net income (loss) of such
Subsidiary was included in calculating Consolidated Net Income.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange and Registration Rights Agreement" means the Exchange
and Registration Rights Agreement dated as of the Issue Date by and among the
Initial Purchaser, the Company and the Initial Guarantors, as such agreement may
be amended, modified, or supplemented from time to time in accordance with the
terms thereof.
"Exchange Offer" shall have the meaning set forth in the Exchange
and Registration Rights Agreement.
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"Exchange Offer Registration Statement" shall have the meaning
set forth in the Exchange and Registration Rights Agreement.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants, in statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
this Indenture shall be computed in conformity with GAAP.
"Global Security" means a Security that is in the form of Exhibit
A or Exhibit B hereto that includes the information called for by footnote 1
thereof.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
through an agreement enforceable by or for the benefit of the holder of such
Indebtedness and any such obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guarantor Subsidiary" means any Person that has issued a
Subsidiary Guaranty.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Commodity Agreement, Interest Rate Agreement or Currency
Agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
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"Holdings" means NFC Castings, Inc., a Delaware corporation, any
Person acceding to its ownership, and successors thereto.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary; provided
further, however, that in the case of a discount security, the accretion of
original issue discount on such security shall not be considered an Incurrence
of Indebtedness if (but only if) the Company elects to treat the whole face
amount of such security as Incurred at such time (and such Incurrence is then
permitted in accordance with the terms of this Indenture).
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed
money;
(ii) the principal of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;
(iii) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement obligations
with respect thereto) other than letters of credit or similar
instruments supporting Trade Payables entered into in the ordinary
course of business of such Person to the extent that such letters of
credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed not later than the third business day following
such drawing;
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables),
which purchase price is due more than twelve months after the date of
placing such property in service or taking delivery and title thereto or
the completion of such services;
(v) all Capitalized Lease Obligations and all Attributable Debt
of such Person;
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(vi) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of the Company, any Preferred
Stock (but excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of such
Person shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness of
such other Persons;
(viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person; and
(ix) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Initial Purchaser" means Chase Securities Inc.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" in any Person means any direct or indirect advance
loan (other than advances or loans to customers or suppliers in the ordinary
course of business that are recorded as accounts receivable on the balance sheet
of the Person making such loan or advance) or other extension of credit
(including by way of Guarantee or similar arrangement) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock,
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Indebtedness or other similar instruments issued by such Person. For purposes of
the definition of "Unrestricted Subsidiary" and Section 4.04 only, (i)
"Investment" shall include the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent "Investment" in an Unrestricted Subsidiary in an amount (if
positive) equal to (x) the Company's "Investment" in such Subsidiary at the time
of such redesignation less (y) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value of the net assets
of such Subsidiary at the time of such redesignation; and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Board of Directors.
"Issue Date" means the date on which the Initial Securities are
originally issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Management Investors" means the officers and employees of ACP
Products, L.L.C., ACP Holdings, Holdings, the Company or a Subsidiary of the
Company who acquire Voting Stock of ACP Products, L.L.C., ACP Holdings, Holdings
or the Company on or after the Issue Date.
"Moody's" means Moody's Investors Service, Inc., and its
successors.
"Neenah Merger" means the merger, consummated on April 30, 1997,
of NC Merger Company, a Delaware corporation, with and into the Company under
the terms of the Agreement and Plan of Reorganization (as amended) by and among
Holdings, the Company and NC Merger Company and dated November 20, 1996.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable, or from an
escrow account or otherwise, in each case only as and when received, but
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17
excluding any other consideration received in the form of assumption by the
acquiring person of Indebtedness or other obligations relating to the properties
or assets that are the subject of such Asset Disposition or received in any
other non-cash form) therefrom, in each case net of: (i) all legal, title and
recording expenses, commissions and other expenses (including fees and expenses
of counsel and investment bankers) incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a liability under
GAAP, as a consequence of such Asset Disposition; (ii) all payments made on any
Indebtedness which is secured by any assets subject to such Asset Disposition,
in accordance with the terms of any Lien upon such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law, be repaid out of the proceeds from such Asset Disposition;
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition; and (iv) appropriate amounts to be provided by the party or parties
making such Asset Disposition as a reserve, in accordance with GAAP, against any
liabilities associated with the assets disposed of in such Asset Disposition and
retained by the Company or any Restricted Subsidiary after such Asset
Disposition, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the proceeds of such issuance or sale in the form of cash,
including payments in respect of deferred payment obligations when received in
form of, or stock or other assets when disposed for, cash, net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, filing and registration fees, trustee's fees,
consultant and other fees actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom shall be the principal executive, financial or accounting
officer of the Company.
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"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company or the Trustee.
"Original Indenture" means the Indenture, dated as of April 30,
1997, as amended, between the Company and United States Trust Company of New
York as trustee, as in effect on the date of this Indenture.
"Original Issue Date" means the date of issuance of the Original
Securities, April 30, 1997.
"Original Securities" means the Company's 11-1/8% Senior
Subordinated Notes due 2007 issued under the Original Indenture and any of the
Company's Series B 11-1/8% Senior Subordinated Notes exchanged therefor.
"Permitted Holders" means (i) CVC and its Affiliates and
Permitted Transferees and (ii) the Management Investors and their Permitted
Transferees.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in: (i) the Company; (ii) a Restricted Subsidiary or a
Person which shall, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such Restricted
Subsidiary is a Related Business; (iii) another Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Related Business; (iv) Temporary Cash Investments; (v) receivables owing to
the Company 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 Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (vi) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (vii) loans or advances to employees made in the ordinary
course of business and not exceeding $1,000,000 in the aggregate outstanding at
any one time; (viii) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of
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judgments; (ix) securities received as consideration in sales of assets made in
compliance with Section 4.06; (x) other Investments, of any type, provided that
the amount of such Investments made after the Original Issue Date in reliance on
this clause (x) and outstanding at any time does not exceed 7.5% of Total
Assets; or (xi) Guarantees relating to Indebtedness which is permitted to be
Incurred under Section 4.03.
"Permitted Liens" means with respect to any Person, (a) Liens to
secure Indebtedness permitted under the provisions described under clause (b)(i)
or (ii) under Section 4.03; (b) pledges or deposits made or other Liens granted
by (1) such Person under workmen's compensation laws, unemployment insurance
laws or similar legislation, (2) in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such Person is a
party, or (3) to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or appeal
bonds to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case Incurred in the
ordinary course of business, (c) Liens imposed by law, such as carriers',
warehousemen's, mechanics', employees' and other like Liens, in each case for
sums not yet due or being contested in good faith by appropriate proceedings or
other Liens arising out of judgments, awards, decrees or orders of any court or
other governmental authority against such Person with respect to which such
Person shall then be proceeding with an appeal or other proceedings for review;
(d) Liens for property taxes not yet due or payable or subject to penalties for
non-payment or which are being contested in good faith and by appropriate
proceedings; (e) Liens in favor of issuers of surety, performance, judgment,
appeal and other like bonds or letters of credit issued pursuant to the request
of and for the account of such Person in the ordinary course of its business;
(f) minor survey exceptions, minor encumbrances, easements or reservations of,
or rights of others for, licenses, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning provisions,
carveouts, conditional waivers or other restrictions as to the use of real
properties or minor irregularities of title (and with respect to leasehold
interests, mortgages, obligations, Liens and other encumbrances incurred,
created, assumed or permitted to exist and arising by, through or under a
landlord or owner of the leased property, with or without consent of the lessee)
or Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which
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were not Incurred in connection with Indebtedness and which do not in the
aggregate materially impair the use of such properties in the operation of the
business of such Person; (g) Liens existing or provided for under written
arrangements existing on the Original Issue Date; (h) Liens securing
Indebtedness or other obligations of a Subsidiary of such Person owing to such
Person or a wholly owned Subsidiary of such Person; (i) Liens securing Hedging
Obligations so long as the related Indebtedness is, and is permitted to be under
the Indenture, secured by a Lien on the same property securing such Hedging
Obligations; (j) Liens to secure any refinancing, refunding, replacement,
renewal, repayment or extension (or successive refinancings, refundings,
replacements, renewals, repayments or extensions) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in clause (g), (i), (l), (m) or
(n); provided, however, that (x) such new Lien shall be limited to all or part
of the same property that secured the original Lien (plus improvements on such
property) and (y) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (A) the outstanding principal
amount or, if greater, committed amount of the Indebtedness described under
clauses (g), (i), (l), (m) or (n) at the time the original Lien became a
Permitted Lien and (B) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, replacement,
renewal, repayment or extension; (k)(i) mortgages, liens, security interests,
restrictions or encumbrances that have been placed by any developer, landlord or
other third party on property over which the Company or any Restricted
Subsidiary or the Company has easement rights or on any real property leased by
the Company and subordination or similar agreements relating thereto and (ii)
any condemnation or eminent domain proceedings affecting any real property; (l)
Liens on property, assets or shares of stock of a Person at the time such Person
becomes a Subsidiary; provided, however, such Liens are not created, Incurred or
assumed by such Person in connection with, or in contemplation of, such other
Person becoming such a Subsidiary; provided further, however, that such Liens
may not extend to any other property owned by the Company or any Restricted
Subsidiary; (m) Liens on property or assets at the time the Company or a
Restricted Subsidiary acquired the property or assets, including any acquisition
by means of a merger or consolidation with or into the Company or a Restricted
Subsidiary; provided, however, that such Liens are not created in connection
with, or in contemplation of, such acquisition; provided further, however, that
the Liens may not extend to any other property owned by the Company or any
Restricted Subsidiary; and
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(n) any Lien on stock or other securities of an Unrestricted Subsidiary that
secures Indebtedness of such Unrestricted Subsidiary.
"Permitted Transferee" means (a) with respect to CVC (i)
Citicorp, any direct or indirect wholly owned subsidiary of Citicorp, and any
officer, director or employee of CVC, Citicorp or any wholly owned subsidiary of
Citicorp; (ii) any spouse or lineal descendant (including by adoption and
stepchildren) of the officers, directors and employees in clause (a)(i) above or
(iii) any trust, corporation or partnership 100% in interest of the
beneficiaries, stockholders or partners of which consists of one or more of the
persons described in clause (a)(i) or (ii) above and (b) with respect to any
officer or employee of ACP Products, L.L.C., ACP Holdings, Holdings, the Company
or a Subsidiary of the Company (i) any spouse or lineal descendant (including by
adoption and stepchildren) of such officer or employee and (ii) any trust,
corporation or partnership 100% in interest of the beneficiaries, stockholders
or partners of which consists of such officer or employee, any of the persons
described in clause (b)(i) above or any combination thereof.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock," as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security that is due or overdue or is
to become due at the relevant time.
"Private Placement Legend" means the legend set forth under such
caption in the form of Initial Security in Exhibit A hereto.
"Public Equity Offering" means an underwritten primary public
offering of common stock of ACP Holdings, Company or Holdings (or, for purposes
of Section 4.11(d),
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any Restricted Subsidiary) pursuant to an effective registration statement
(other than a registration statement on Form S-4, S-8 or any successor or
similar forms) under the Securities Act (whether alone or in conjunction with
any secondary public offering); provided, however, that if any such offering is
an offering of the common stock of ACP Holdings, only the net proceeds thereof
that are contributed to the Company shall be taken into consideration for
purposes of this definition.
"Public Market" means any time after (x) a Public Equity Offering
has been consummated and (y) at least 15% of the total issued and outstanding
common stock of ACP Holdings, the Company or Holdings (or, for purposes of
Section 4.11, any Restricted Subsidiary) has been distributed by means of an
effective registration statement under the Securities Act.
"Purchase Agreement" means the Purchase Agreement dated June 26,
1997 among the Company and the Initial Purchaser.
"Purchase Money Indebtedness" means Indebtedness (i) consisting
of the deferred purchase price of an asset or assets (including Capital Stock
and the assets of an ongoing business) including additions and improvements, any
conditional sale obligation, any obligation under any title retention agreement
or any other purchase money obligation or (ii) incurred to finance the
acquisition by the Company or a Restricted Subsidiary of an asset or assets
(including Capital Stock and the assets of a Related Business), including
additions and improvements; provided that in the case of clause (i) the Average
Life of such Indebtedness is less than the anticipated useful life of assets
having an aggregate fair market value representing more than 50% of the
aggregate fair market value of all assets so acquired and that in the case of
clauses (i) and (ii) such Indebtedness is incurred within 180 days after the
acquisition by the Company or Restricted Subsidiary of such asset or assets, or
is in existence with respect to any asset or other property at the time such
asset or property is acquired.
"Redemption Date" means the date on which the Securities are
optionally redeemed pursuant to Section 3.07.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances" and "refinanced"
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shall have a correlative meaning) any Indebtedness existing on the Original
Issue Date or Incurred in compliance with this Indenture and the Original
Indenture (including Indebtedness of the Company that refinances Indebtedness of
any Restricted Subsidiary (to the extent permitted in this Indenture and the
Original Indenture) and Indebtedness of any Restricted Subsidiary that
refinances Indebtedness of that or another Restricted Subsidiary of the
Company), including Indebtedness that refinances Refinancing Indebtedness;
provided, however, that (i) the Refinancing Indebtedness has a Stated Maturity
no earlier than the Stated Maturity of the Indebtedness being refinanced; (ii)
the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of
the Indebtedness being refinanced; (iii) such Refinancing Indebtedness is
Incurred in an aggregate principal amount (or, if issued with original issue
discount, an aggregate issue price) that is equal to or less than the aggregate
principal amount (or, if issued with original issue discount, the aggregate
accreted value) then outstanding of the Indebtedness being refinanced plus the
amount of any premium reasonably determined by the Company or such Restricted
Subsidiary, as applicable, as necessary at the time of such refinancing to
accomplish such refinancing or required pursuant to the terms thereof, plus the
amount of expenses of the Company or such Restricted Subsidiary, as applicable,
Incurred in connection with such refinancing; and (iv) if the Indebtedness being
refinanced is subordinated in right of payment to the Securities, such
Refinancing Indebtedness is subordinated in right of payment to the Securities
to the extent of the Indebtedness being refinanced; provided further, however,
that Refinancing Indebtedness shall not include Indebtedness of the Company or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary.
"Registered Exchange Offer" shall have the meaning set forth in
the Exchange and Registration Rights Agreement.
"Related Business" means any business of the Company and the
Restricted Subsidiaries as conducted on the Original Issue Date and any business
related, ancillary or complementary thereto.
"Restricted Subsidiary" means any Subsidiary of
the Company other than an Unrestricted Subsidiary.
"S&P" means Standard and Poor's Ratings Group, a division of
McGraw-Hill, Inc., and its successors.
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"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or such Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" of the Company means any Indebtedness of
the Company secured by a Lien. "Secured Indebtedness" of any Guarantor
Subsidiary has a correlative meaning.
"Securities" means, collectively, the Initial Securities and,
when and if issued as provided in the Exchange and Registration Rights
Agreement, the Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the
Global Security (as appointed by the Depository), or any successor entity
thereto and shall initially be the Trustee.
"Senior Bank Facilities" means the credit agreement dated as of
the Original Issue Date, as amended, waived or otherwise modified from time to
time, among Holdings, the Company, the lenders party thereto from time to time,
and The Chase Manhattan Bank, a New York banking corporation, as agent (except
to the extent that any such amendment, waiver or other modification thereto
would be prohibited by the terms of this Indenture.
"Senior Indebtedness" of the Company means all principal of,
premium (if any), accrued interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, guarantees and
other amounts owing with respect to all Indebtedness of the Company, and
including all Bank Indebtedness, whether outstanding on the Issue Date or
thereafter incurred, unless in the instrument creating or evidencing the same or
pursuant to which the same is
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outstanding it is expressly provided that such obligations are not superior in
right of payment to the Securities; provided, however, that Senior Indebtedness
shall not include (1) any obligation of the Company to any Subsidiary, (2) any
liability for federal, foreign, state, local or other taxes owed or owing by the
Company, (3) any accounts payable or other liability to trade creditors arising
in the ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities), (4) any Indebtedness or obligation of the Company
which is subordinate or junior in any respect (other than as a result of the
Indebtedness being unsecured) to any other Indebtedness or obligation of the
Company, including any Senior Subordinated Indebtedness and any Subordinated
Obligations, (5) any obligations with respect to any Capital Stock or (6) any
Indebtedness Incurred in violation of this Indenture. "Senior Indebtedness" of
any Guarantor Subsidiary has a correlative meaning.
"Senior Subordinated Indebtedness" means the Securities and any
other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Securities and is not subordinated
by its terms to any Indebtedness or other obligation of the Company which is not
Senior Indebtedness. "Senior Subordinated Indebtedness" of any Guarantor
Subsidiary has a correlative meaning.
"Shelf Registration Statement" shall have the meaning set forth
in the Exchange and Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of clause
(w)(1) or (2) of Rule 1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the purchase of
such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Obligation" of the Company means any Indebtedness
of the Company (whether outstanding on the Original Issue Date or thereafter
Incurred) which is
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expressly subordinate in right of payment to the Securities pursuant to a
written agreement. "Subordinated Obligation" of any Guarantor Subsidiary shall
have a correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers, trustees or members of any other
governing body thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person or (ii) one or more Subsidiaries of such Person.
"Subsidiary Guaranty" means any Guarantee of the Securities which
may from time to time be executed and delivered pursuant to the terms of this
Indenture. Each such Subsidiary Guaranty shall be in the form prescribed in this
Indenture.
"Temporary Cash Investments" means any of the following: (i) any
investment in direct obligations (x) of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof or (y) of any foreign country recognized by the United States of
America rated at least "A" by S&P or "A-1" by Moody's; (ii) investments in time
deposit accounts, certificates of deposit and money market deposits maturing
within 365 days of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital and surplus in excess of $250,000,000 (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act); (iii)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above; (iv) investments in
commercial paper, maturing not more than 365 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher)
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according to Moody's or "A-1" (or higher) according to S&P; (v) investments in
securities with maturities of six months or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof,
and rated at least "A" by S&P or "A" by Moody's; (vi) any money market deposit
accounts issued or offered by a domestic commercial bank or a commercial bank
organized and located in a country recognized by the United States of America,
in each case, having capital and surplus in excess of $250,000,000 (or the
foreign currency equivalent thereof), or investments in money market funds
complying with the risk limiting conditions of Rule 2a-7 (or any successor rule)
of the Commission under the Investment Company Act of 1940, as amended; and
(vii) similar investments approved by the Board of Directors in the ordinary
course of business.
"Total Assets" means, at any date of determination, the total
consolidated assets of the Company and its Restricted Subsidiaries, as set forth
on the Company's then most recent consolidated balance sheet.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
Section 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by, and published in, the most recent Federal Reserve Statistical
Release H.15(519) which has become publicly available at least two Business Days
prior to the date fixed for redemption of the Securities following a Change of
Control (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the then
remaining Average Life to Stated Maturity of the Securities; provided, however,
that if the Average Life to Stated Maturity of the Securities 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
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yields are given, except that if the Average Life to Stated Maturity of the
Securities is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President,
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial
Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided, however, that either (A) the Subsidiary to be so
designated has total Consolidated assets of $1,000 or less or (B) if such
Subsidiary has Consolidated assets greater than $1,000, then such designation
would be permitted under the Section 4.04. The Board of Directors may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however,
that immediately after giving effect to such designation (x) the Company could
Incur $1.00 of additional Indebtedness under paragraph (a) of Section 4.03 and
(y) no Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the resolution of the Board of Directors giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of
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America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares and, to the
extent required by local ownership laws in foreign countries, shares owned by
foreign shareholders) is owned by the Company or another Wholly Owned Subsidiary
(including shares held of record by a nominee for the benefit of the Company or
another Wholly Owned Subsidiary).
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SECTION 1.02. Other Definitions.
Term Defined in
---- Section
-------
"Affiliate Transaction"........................................... 4.07
"Bankruptcy Law".................................................. 6.01
"covenant defeasance option"...................................... 8.01(b)
"Custodian"....................................................... 6.01
"Event of Default"................................................ 6.01
"IAI"............................................................. 2.01(b)
"IAI Global Note"................................................. 2.01(b)
"legal defeasance option"......................................... 8.01(b)
"Legal Holiday"................................................... 13.08
"Obligations"..................................................... 10.01
"Offer"........................................................... 4.06(b)
"Offer Amount".................................................... 4.06(c)
"Offer Period".................................................... 4.06(c)
"Offshore Securities Exchange Date"............................... 2.01(c)
"Paying Agent".................................................... 2.03
"Permanent Offshore Physical Securities".......................... 2.01(c)
"Purchase Date"................................................... 4.06(c)
"QIB Global Note"................................................. 2.01(b)
"QIBs"............................................................ 2.01(b)
"Registrar"....................................................... 2.03
"Restricted Payment".............................................. 4.04
"Rule 144A"....................................................... 2.01(b)
"Successor Company"............................................... 5.01
"Temporary Offshore Physical Securities".......................... 2.01(c)
"U.S. Global Security"............................................ 2.01(b)
"U.S. Physical Securities"........................................ 2.01(d)
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture Securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate
or junior to Secured Indebtedness of the Company or a Guarantor
Subsidiary, as the case may be, merely by virtue of its nature as
unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a
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balance sheet of the issuer dated such date prepared in accordance with
GAAP and accretion of principal on such security shall be deemed to be
the Incurrence of Indebtedness; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. (a) The Initial Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article II. Any Exchange Securities
and the Trustee's certificate of authentication shall be substantially in the
form of Exhibit B, which is incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article II. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company or any Guarantor Subsidiary is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Security shall be dated the date of its
authentication. The terms of the Securities set forth in Exhibit A and B are
part of the terms of this Indenture. The Securities shall be issuable only in
registered form without coupons and only in denominations of $1,000 and integral
multiples thereof.
(b) The Initial Securities are being offered and sold by the
Company pursuant to the Purchase Agreement. Initial Securities offered and sold
to "qualified institutional buyers" (as defined in Rule 144A under the
Securities Act) ("QIBs") and institutional "Accredited Investors" (within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) ("IAIs"),
in each case in accordance with Rule 144A under the Securities Act ("Rule 144A")
as provided in the Purchase Agreement, shall be issued on the Issue Date
initially in the form of two permanent global Securities (with separate CUSIP
numbers) substantially in the form set forth in Exhibit A (each a "U.S. Global
Security") deposited with the Trustee, as
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custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. One U.S. Global Security (which may be
represented by more than one certificate, if so required by the Depositary's
rules regarding the maximum principal amount to be represented by a single
certificate) will represent Initial Securities sold to QIBs (the "QIB Global
Note"), and the other will represent Initial Securities sold to IAIs (the "IAI
Global Note"). The aggregate principal amount of each U.S. Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided. Transfers of Initial Securities from QIBs to IAIs, and from IAIs to
QIBs, will be represented by appropriate increases and decreases to the
respective amounts of the appropriate U.S. Global Securities, as more fully
provided in Section 2.13.
(c) Initial Securities offered and sold in reliance on Regulation
S, if any, shall be issued initially in the form of temporary certificated
Securities in registered form substantially in the form set forth in Exhibit A
(the "Temporary Offshore Physical Securities"). The Temporary Offshore Physical
Securities will be registered in the name of, and held by, a temporary
certificate holder designated by the Initial Purchaser until the later of the
completion of the distribution of the Initial Securities and the termination of
the "restricted period" (as defined in Regulation S) with respect to the offer
and sale of the Initial Securities (the "Offshore Securities Exchange Date").
The Company shall promptly notify the Trustee in writing of the occurrence of
the Offshore Securities Exchange Date and, at any time following the Offshore
Securities Exchange Date, upon receipt by the Trustee and the Company of a
certificate substantially in the form set forth in Exhibit E, the Company shall
execute, and the Trustee shall authenticate and deliver, one or more permanent
certificated Securities in registered form substantially in the form set forth
in Exhibit A (the "Permanent Offshore Physical Securities") in exchange for the
Temporary Offshore Physical Securities of like tenor and amount.
(d) Initial Securities offered and sold other than as described
in the preceding two paragraphs, if any, shall be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in Exhibit A (the "U.S. Physical Securities").
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(e) The Temporary Offshore Physical Securities, Permanent
Offshore Physical Securities and U.S. Physical Securities are sometimes
collectively herein referred to as the "Physical Securities".
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and deliver (1) Initial Securities
for original issue in an aggregate principal amount of $45,000,000 and (2)
Exchange Securities for issue only in a Registered Exchange Offer, pursuant to
the Exchange and Registration Rights Agreement, for Initial Securities for a
like principal amount of Initial Securities exchanged pursuant thereto, in each
case upon a written order of the Company signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of the Company. Such
order shall specify the amount of the Securities to be authenticated, the date
on which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities or Exchange Securities. The aggregate
principal amount of Securities outstanding at any time may not exceed
$45,000,000 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by an authorized officer of the
Trustee, a copy of which shall be furnished to the Company. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
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SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the provi-
sions of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Securities.
The Company may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided that no
such removal shall become effective until (1) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company
and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (2) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (1) above. The Registrar or Paying Agent may resign at any time upon
written notice; provided, however, that the Trustee may resign as Paying Agent
or Registrar only if the Trustee also resigns as Trustee in accordance with
Section 7.08.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each
due date of the principal and interest on any Security, the Company shall
deposit with the Paying
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Agent (or if the Company or a Subsidiary is acting as Paying Agent, segregate
and hold in trust for the benefit of the Persons entitled thereto) a sum
sufficient to pay such principal and interest when so becoming due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of Securityholders or
the Trustee all money held by the Paying Agent for the payment of principal of
or interest on the Securities and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
Any money deposited with any Paying Agent, or then held by the
Company or a Subsidiary in trust for the payment of principal or interest on any
Security and remaining unclaimed for two years after such principal and interest
has become due and payable shall be paid to the Company at its request, or, if
then held by the Company or a Subsidiary, shall be discharged from such trust;
and the Securityholders shall thereafter, as unsecured general creditors, look
only to the Company for payment thereof, and all liability of the Paying Agent
with respect to such money, and all liability of the Company or such Subsidiary
as trustee thereof, shall thereupon cease.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of Section 8-401(l)
of the
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Uniform Commercial Code are met. When Securities are presented to the Registrar
or a co-registrar with a request to exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-registrar's request. The Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges in connection with any transfer or exchange pursuant to this Section.
The Company shall not be required to make and the Registrar need not register
transfers or exchanges of Securities selected for redemption (except, in the
case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any co registrar shall
be affected by notice to the contrary.
Any Holder of a U.S. Global Security shall, by acceptance of such
Global Note, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by the Holder of
such Global Security(or its agent), and that ownership of a beneficial interest
in such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to
this Section 2.06 will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (i)
satisfies the Company or
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the Trustee within a reasonable time after he has notice of such loss,
destruction or wrongful taking and the Registrar does not register a transfer
prior to receiving such notification, (ii) makes such request to the Company or
the Trustee prior to the Security being acquired by a bona fide purchaser and
(iii) satisfies any other reasonable requirements of the Trustee. If required by
the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Trustee to protect the Company, the Trustee,
the Paying Agent, the Registrar and any co-registrar from any loss that any of
them may suffer if a Security is replaced. The Company and the Trustee may
charge the Holder for their expenses in replacing a Security. In the event any
such mutilated, lost, destroyed or wrongfully taken Security has become or is
about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.08. Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may be,
and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
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In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company 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 Securities
which the Trustee knows or has reason to know are so owned shall be disregarded.
SECTION 2.09. Temporary Securities. Until Definitive Securities
and Global Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Definitive
Securities and deliver them in exchange for temporary Securities upon surrender
of such temporary Securities at the office or agency of the Company, without
charge to the Holder.
SECTION 2.10. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation unless the Company directs the Trustee to deliver canceled
Securities to the Company. The Company may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for cancellation.
The Trustee shall not authenticate Securities in place of canceled Securities
other than pursuant to the terms of this Indenture.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
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The Company may make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements (if applicable) of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this paragraph, such
manner of payment shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.13. Book-Entry Provisions for U.S. Global Security.
(a) Each U.S. Global Security initially shall (i) be registered
in the name of the Depositary for such U.S. Global Security or the nominee of
such Depositary and (ii) be delivered to the Trustee as custodian for such
Depositary.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any U.S. Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under such U.S. Global Security, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such U.S. Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of a U.S. Global Security shall be limited to
transfers of such U.S. Global Security in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of beneficial
owners in a
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U.S. Global Security may be transferred in accordance with the rules and
procedures of the Depositary and the provisions of Section 2.14. If required to
do so pursuant to any applicable law or regulation, beneficial owners may obtain
U.S. Physical Securities in exchange for their beneficial interests in a U.S.
Global Security upon written request in accordance with the Depositary's and the
Registrar's procedures. In addition, U.S. Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a U.S. Global Security if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such U.S. Global Security or
the Depositary ceases to be a clearing agency registered under the Exchange Act,
at a time when the Depositary is required to be so registered in order to act as
Depositary, and in each case a successor depositary is not appointed by the
Company within 90 days of such notice or, (ii) the Company executes and delivers
to the Trustee and Security Registrar an Officers' Certificate stating that such
U.S. Global Security shall be so exchangeable or (iii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary.
(c) In connection with any transfer of a portion of the
beneficial interest in a U.S. Global Security pursuant to subsection (b) of this
Section to beneficial owners who are required to hold U.S. Physical Securities,
the Registrar shall reflect on its books and records the date and a decrease in
the principal amount of such U.S. Global Security in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire U.S. Global
Security to beneficial owners pursuant to subsection (b) of this Section, such
U.S. Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in such U.S. Global Security, an equal aggregate
principal amount of U.S. Physical Securities of authorized denominations.
(e) Any U.S. Physical Security delivered in exchange for an
interest in a U.S. Global Security pursuant to subsection (c) or subsection (d)
of this Section shall,
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except as otherwise provided by paragraph (f) of Section 2.14, bear the
applicable legend regarding transfer restrictions applicable to the U.S.
Physical Security set forth in Exhibit A.
(f) The registered holder of a U.S. Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
SECTION 2.14. Special Transfer Provisions.
Unless and until an Initial Security is transferred or exchanged
under an effective registration statement under the Securities Act, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to any IAI which is not a QIB
(excluding Non-U.S. Persons) that is consistent with the Private Placement
Legend:
(i) The Registrar shall register the transfer of any Initial
Security if (x) the requested transfer is at least two years after the
original issue date of the Initial Security or (y) the proposed
transferee has delivered to the Registrar a certificate substantially in
the form set forth in Exhibit C.
(ii) If the proposed transferee is an Agent Member, and the
Initial Security to be transferred consists of U.S. Physical Securities
or an interest in the QIB Global Security, upon receipt by the Registrar
of (x) the document, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the IAI Global Security in an amount equal to (x) the principal amount
of the U.S. Physical Securities to be transferred, and the Trustee shall
cancel the U.S. Physical Security so transferred or (y) the amount of
the beneficial interest in the QIB Global Security to be so transferred
(in which case the Registrar shall reflect on its books and records the
date and an
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appropriate decrease in the principal amount of the QIB Global
Security).
(iii) If the proposed transferee is entitled to receive a U.S.
Physical Security as provided in Section 2.13 and the proposed
transferor is an Agent Member holding a beneficial interest in a U.S.
Global Security, upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (i) and (y) instructions given in accordance
with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and a decrease
in the principal amount of such U.S. Global Security in an amount equal
to the principal amount of the beneficial interest in such U.S. Global
Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical
Securities of like tenor and amount.
(iv) If the Initial Security to be transferred consists of U.S.
Physical Securities and the proposed transferee is entitled to receive a
U.S. Physical Security as provided in Section 2.13, upon receipt by the
Registrar of the document, if any, required by paragraph (i), the
Registrar shall register such transfer and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more U.S.
Physical Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Security to a
QIB (excluding Non-U.S.
Persons):
(i) If the Security to be transferred consists of U.S. Physical
Securities, Temporary Offshore Physical Securities, Permanent Offshore
Physical Securities or an interest in the IAI Global Security, the
Registrar shall register the transfer if such transfer is being made by
a proposed transferor who has provided the Registrar with a certificate
substantially in the form set forth in Exhibit F hereto.
(ii) If the proposed transferee is an Agent Member, and the
Initial Security to be transferred consists of U.S. Physical Securities,
Temporary Offshore Physical Securities, Permanent Offshore Physical
Securities or an interest in the IAI Global Security, upon receipt by
the Registrar of (x) the
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document, if any, required by paragraph (i) and (y) instructions given
in accordance with the Depositary's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the QIB Global Security in an
amount equal to (x) the principal amount of the U.S. Physical
Securities, Temporary Offshore Physical Securities or Permanent Offshore
Physical Securities, as the case may be, to be transferred, and the
Trustee shall cancel the Physical Security so transferred or (y) the
amount of the beneficial interest in the IAI Global Security to be so
transferred (in which case the Registrar shall reflect on its books and
records the date and an appropriate decrease in the principal amount of
the IAI Global Security).
(iii) If the proposed transferee is entitled to receive a U.S.
Physical Security as provided in Section 2.13 and the proposed
transferor is an Agent Member holding a beneficial interest in a U.S.
Global Security, upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (i) and (y) instructions given in accordance
with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and a decrease
in the principal amount of such U.S. Global Security in an amount equal
to the principal amount of the beneficial interest in such U.S. Global
Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical
Securities of like tenor and amount.
(iv) If the Initial Security to be transferred consists of U.S.
Physical Securities, Temporary Offshore Physical Securities or Permanent
Offshore Physical Securities and the proposed transferee is entitled to
receive a U.S. Physical Security as provided in Section 2.13, upon
receipt by the Registrar of the document, if any, required by paragraph
(i), the Registrar shall register such transfer and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
U.S. Physical Securities of like tenor and amount.
(c) Transfers by Non-U.S. Persons Prior to August 10, 1997. The
following provisions shall apply with
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respect to registration of any proposed transfer of an Initial Security by a
Non-U.S. Person prior to August 10, 1997:
(i) The Registrar shall register the transfer of any Initial
Security (x) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has provided the Registrar with a certificate
substantially in the form set forth in Exhibit G hereto or (y) if the
proposed transferee is a QIB and the proposed transferor has provided
the Registrar with a certificate substantially in the form set forth in
Exhibit F hereto. Unless clause (ii) below is applicable, the Company
shall execute, and the Trustee shall authenticate and deliver, one or
more Temporary Offshore Physical Securities of like tenor and amount.
(ii) If the proposed transferee is an Agent Member in connection
with a proposed transfer of an Initial Security to a QIB, upon receipt
by the Registrar of (x) the document, if any, required by paragraph (i)
and (y) instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the QIB Global Security in an amount equal to the principal amount of
the Temporary Offshore Physical Security to be transferred, and the
Registrar shall cancel the Temporary Offshore Physical Securities so
transferred.
(d) Transfers by Non-U.S. Persons on or After August 10, 1997.
The following provisions shall apply with respect to any transfer of an Initial
Security by a Non-U.S. Person on or after August 10, 1997:
(i) (x) If the Initial Security to be transferred is a Permanent
Offshore Physical Note, the Registrar shall register such transfer, (y)
if the Initial Security to be transferred is a Temporary Offshore
Physical Note, upon receipt of a certificate substantially in the form
set forth in Exhibit E from the proposed transferor, the Registrar shall
register such transfer and (z) in the case of either clause (x) or (y),
unless clause (ii) below is applicable, the Company shall execute, and
the Trustee shall authenticate and deliver, one or more Permanent
Offshore Physical Securities of like tenor and amount.
(ii) If the proposed transferee is an Agent Member in connection
with a proposed transfer of an Initial
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Security to a QIB, upon receipt by the Registrar of instructions given
in accordance with the Depositary's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the QIB Global Security in an
amount equal to the principal amount of the Temporary Offshore Physical
Security or of the Permanent Offshore Physical Security to be
transferred, and the Trustee shall cancel the Physical Security so
transferred.
(e) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Security to a
Non-U.S. Person:
(i) Prior to August 10, 1997, the Registrar shall register any
proposed transfer of an Initial Security to a Non-U.S. Person upon
receipt of a certificate substantially in the form set forth in Exhibit
G from the proposed transferor and the Company shall execute, and the
Trustee shall authenticate and make available for delivery, one or more
Temporary Offshore Physical Securities.
(ii) On and after August 10, 1997, the Registrar shall register
any proposed transfer to any Non-U.S. Person (w) if the Initial Security
to be transferred is a Permanent Offshore Physical Note, (x) if the
Initial Security to be transferred is a Temporary Offshore Physical
Note, upon receipt of a certificate substantially in the form set forth
in Exhibit E from the proposed transferor, (y) if the Initial Security
to be transferred is a U.S. Physical Security or an interest in a U.S.
Global Security, upon receipt of a certificate substantially in the form
set forth in Exhibit E from the proposed transferor and (z) in the case
of either clause (w), (x) or (y), the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Permanent Offshore
Physical Securities of like tenor and amount.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Security, upon receipt by the
Registrar of (x) the document, if any, required by paragraph (i), and
(y) instructions in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such U.S.
Global Security in an amount equal to the principal amount of the
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beneficial interest in the U.S. Global Security to be transferred and
the Company shall execute, and the Trustee shall authenticate and
deliver, one or more Permanent Offshore Physical Securities of like
tenor and amount.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless either (i) the circumstances contemplated by
paragraph (c) of Section 2.01 (relating to Permanent Offshore Physical
Securities) or paragraph (a)(i)(x), (d)(i) or (e)(ii) of this Section 2.14 exist
or (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(g) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.13 or this Section
2.14. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
Interest payable on the Securities shall be computed on the basis
of a 360-day year comprised of 30-day months.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities pursuant to Section 3.07, it
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shall notify the Trustee in writing of the redemption date and the principal
amount of Securities to be redeemed.
The Company shall give each notice to the Trustee provided for in
this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein; provided, however, that an
Opinion of Counsel shall not be required in connection with a redemption
pursuant to Section 3.07. If fewer than all the Securities are to be redeemed,
the record date relating to such redemption shall be selected by the Company and
given to the Trustee, which record date shall be not less than 15 days after the
date of notice to the Trustee (unless a shorter period shall be acceptable to
the Trustee). Any such notice may be canceled by notice in writing to the
Trustee at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities to be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in amounts of $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities, the Company shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
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The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the CUSIP number, if any, printed on the Securities being
redeemed;
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities; and
(9) that if a Security is to be redeemed in part, only the
portion of the principal amount (equal to $1,000 or an integral
multiple thereof) of such Security to be redeemed and that a new
Security in the aggregate principal amount equal to the unredeemed
portion thereof will be issued without charge to the holder.
At the Company's request (which may be revoked at any time in
writing prior to the time at which the Trustee shall have given such notice to
the Holders), the Trustee shall give the notice of redemption in the Company's
name and at the Company's expense. In such event, the Company shall provide the
Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for
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redemption become due and payable on the redemption date and at the redemption
price stated in the notice. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price stated in the notice, plus accrued
interest, if any, to the redemption date; provided that if the redemption date
is after a regular record date and on or prior to the interest payment date, the
accrued interest shall be payable to the Securityholder of the redeemed
Securities registered on the relevant record date. If mailed in the manner
provided herein, the notice shall be conclusively presumed to have been given
whether or not the Holder receives such notice. Failure to give notice or any
defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.
SECTION 3.05. Deposit of Redemption Price. At least one
Business Day prior to the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which have been
delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
SECTION 3.07. Optional Redemption. (a) Except as set forth in
the next two paragraphs, the Securities may not be redeemed prior to May 1,
2002. On and after that date, the Company may redeem the Securities in whole or
in part, at any time at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record
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date to receive interest due on the relevant interest payment date that is on or
prior to the date of redemption), if redeemed during the 12-month period
beginning on or after May 1 of the years set forth below:
Redemption
Period Price
- ------ -----
2002 ............................................. 105.5625%
2003 ............................................. 103.7083%
2004 ............................................. 101.8542%
2005 and thereafter............................... 100.0000%
(b) Notwithstanding the foregoing, at any time on or prior to
May 1, 2000, the Company may redeem in the aggregate up to 40% of the original
aggregate principal amount of Securities with the proceeds of one or more Public
Equity Offerings following which there is a Public Market, at a redemption price
(expressed as a percentage of principal amount thereof) of 111.125% plus 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 that is on or prior to the date of redemption);
provided, however, that at least 60% of the original aggregate principal amount
of the Securities must remain outstanding after each such redemption.
(c) Notwithstanding paragraphs (a) and (b) above, the Company
shall not redeem the Original Securities unless, substantially concurrently with
such redemption, the Company redeems an aggregate principal amount of Securities
(rounded to the nearest integral multiple of $1000) equal to the product of: (1)
a fraction, the numerator of which is the aggregate principal amount of Original
Securities to be so redeemed and the denominator of which is the aggregate
principal amount of Original Securities outstanding immediately prior to such
proposed redemption, and (2) the aggregate principal amount of Securities
outstanding immediately prior to such proposed redemption. The Company shall not
redeem the Securities unless, substantially concurrently with such redemption,
the Company redeems an aggregate principal amount of Original Securities
(rounded to the nearest integral multiple of $1000) equal to the product of: (1)
a fraction, the numerator of which is the aggregate principal amount of
Securities to be so redeemed and the denominator of which is the aggregate
principal amount of Securities outstanding immediately prior to such
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proposed redemption, and (2) the aggregate principal amount of Original
Securities outstanding immediately prior to such proposed redemption.
(d) At any time prior to May 1, 2002, the Securities may be
redeemed, in whole or in part, at any time within 180 days after a Change of
Control, at a redemption price equal to the sum of (i) the principal amount
thereof plus (ii) 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 that is on or prior
to the date of redemption) plus (iii) the Applicable Premium.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be required to be or remain subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC
(after the date that either the Exchange Offer, Registration Statement or the
Shelf Registration Statement becomes effective), and provide (both prior to and
after such effective date) the Trustee and Securityholders and prospective
Securityholders (upon request) with the annual reports and the information,
documents and other reports which are specified in Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
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SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur any
Indebtedness (other than pursuant to the following paragraph (b)) unless on the
date of such Incurrence the Consolidated Coverage Ratio exceeds 2.00 to 1.
(b) Notwithstanding Section 4.03(a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness consisting of revolving credit, working capital
or letters of credit financing in an aggregate principal amount at any
time outstanding not in excess of the greater of $35,000,000 and the
Borrowing Base in effect from time to time (in each case less the
aggregate amount of all repayments of principal actually made
thereunder since the Original Issue Date with Net Available Cash from
Asset Dispositions pursuant to Section 4.06(a)(iii)(A));
(ii) Indebtedness of the Company owing to and held by any
Wholly Owned Subsidiary or Indebtedness of a Restricted Subsidiary
owing to and held by the Company or any Wholly Owned Subsidiary;
provided, however, that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Company or a Wholly
Owned Subsidiary) will be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the issuer thereof;
(iii) Indebtedness of the Company represented by the
Securities and the Original Securities;
(iv) any Indebtedness of the Company and its Restricted
Subsidiaries (other than the Indebtedness described in clauses (i) or
(ii) above) outstanding on the Original Issue Date and Indebtedness
Incurred under Section 4.03(a) of the Original Indenture prior to the
Issue Date;
(v) Indebtedness of the Company and its Restricted Subsidiaries,
(A) in respect of judgment, appeal, surety, performance and other like bonds,
bankers' acceptances and letters of credit provided by the Company and its
Restricted Subsidiaries in the ordinary course of their business and which do
not secure other Indebtedness and (B) under
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Commodity Agreements, Currency Agreements and Interest Rate Agreements that are
designed to protect the Company and its Restricted Subsidiaries against
fluctuations in commodity prices (for raw materials used by them), interest
rates or currency exchange rates and not for the purposes of speculation;
(vi) Indebtedness represented by Guarantees by the Company of
Indebtedness of a Restricted Subsidiary, or in respect of letters of credit
provided by the Company to support such Indebtedness, or Guarantees by a
Restricted Subsidiary of Indebtedness of the Company or a Restricted Subsidiary,
or in respect of letters of credit provided by a Restricted Subsidiary to
support such Indebtedness; provided, however, that only Indebtedness that is
incurred in compliance with this covenant may be guaranteed pursuant to this
clause (vi);
(vii) Purchase Money Indebtedness, industrial revenue bonds or similar
Indebtedness and Capitalized Lease Obligations of the Company and its Restricted
Subsidiaries in an aggregate principal amount at any time outstanding not in
excess of 10% of Total Assets;
(viii) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities or obligations in respect of purchase
price adjustments, in connection with the acquisition or disposition of any
business, assets or Subsidiary of the Company permitted under this Indenture;
(ix) Indebtedness of the Company and its Restricted Subsidiaries, to
the extent the proceeds thereof are immediately used after the
Incurrence thereof to purchase Original Securities or Securities,
tendered in an offer to purchase made as a result of a Change of
Control;
(x) Indebtedness of the Company or a Restricted Subsidiary owed to
(including obligations in respect of letters of credit for the benefit
of) any Person in connection with liability insurance provided by such
Person to the Company or such Restricted Subsidiary, pursuant to
reimbursement or indemnification obligations to such Person, in each
case Incurred in the ordinary course of business;
(xi) Indebtedness of the Company consisting of guarantees of up
to an aggregate principal amount of $2,000,000 of borrowings by
Management Investors in
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connection with purchases of Voting Stock of Holdings on or after the
Original Issue Date and in accordance with Section 4.04;
(xii) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount at any time outstanding not in excess of
$15,000,000 million which Indebtedness may be incurred pursuant to
clause (i) above; and
(xiii) any Refinancing Indebtedness Incurred in respect of any
Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (ii),
(iv), (vii), (ix) or (xiii) of this paragraph (b).
Notwithstanding the foregoing, the Company shall not Incur any
Indebtedness if such Indebtedness is subordinate or junior in ranking in any
respect to any Senior Indebtedness of the Company unless such Indebtedness is
Senior Subordinated Indebtedness or is expressly subordinated in right of
payment to Senior Subordinated Indebtedness of the Company. In addition, the
Company shall not Incur any Secured Indebtedness which is not Senior
Indebtedness of the Company unless contemporaneously therewith effective
provision is made to secure the Securities equally and ratably with (or on a
senior basis to, in the case of Indebtedness subordinated in right of payment to
the Securities) such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien. A Guarantor Subsidiary shall not incur any
Indebtedness if such Indebtedness is subordinate or junior in ranking in any
respect to any Senior Indebtedness of the Subsidiary Guarantor unless such
Indebtedness is Senior Subordinated Indebtedness of such Subsidiary Guarantor or
is expressly subordinated in right of payment to Senior Subordinated
Indebtedness of such Subsidiary Guarantor. In addition, a Guarantor Subsidiary
shall not incur any Secured Indebtedness which is not Senior Indebtedness of
such Guarantor Subsidiary unless contemporaneously therewith effective provision
is made to secure the Subsidiary Guaranty equally and ratably with (or on a
senior basis to, in the case of Indebtedness subordinated in right of payment to
such Subsidiary Guaranty) such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien.
(d) For purposes of determining the outstanding principal
amount of any particular Indebtedness Incurred pursuant to this section 4.03,
(i) Indebtedness permitted by this section need not be permitted solely by
reference to one provision permitting such Indebtedness but may be
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permitted in part by one such provision and in part by one or more other
provisions of this provision permitting such Indebtedness and (ii) in the event
that Indebtedness or any portion thereof meets the criteria of more than one of
the types of Indebtedness described in this section, the Company, in its sole
discretion, shall classify such Indebtedness and only be required to include the
amount of such Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) except dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock) and except
dividends or distributions payable to the Company or another Restricted
Subsidiary (and, if such Restricted Subsidiary has shareholders other than the
Company or other Restricted Subsidiaries, to its other shareholders on a pro
rata basis or on a basis that results in the receipt by the Company or a
Restricted Subsidiary of dividends or distributions of equal or greater value);
(ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock
of the Company or any Restricted Subsidiary held by Persons other than the
Company or another Restricted Subsidiary; (iii) purchase, repurchase, redeem,
defease or otherwise acquire or retire for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment any Subordinated
Obligations (other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition); or (iv) make any Investment (other than a
Permitted Investment) in any Person (any such dividend, distribution, purchase,
redemption, repurchase, defeasance, other acquisition, retirement, Investment or
payment being herein referred to as a "Restricted Payment") if at the time the
Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount
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so expended, if other than in cash, to be determined in good faith by
the Board of Directors, whose determination shall be conclusive and
evidenced by a resolution of the Board of Directors) declared or made
subsequent to the Original Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the
Original Issue Date to the end of the most recent fiscal
quarter ending at least 45 days prior to the date of such
Restricted Payment (or, in case such Consolidated Net Income
shall be a deficit, minus 100% of such deficit);
(B) 100% of the aggregate net proceeds received by
the Company (including the fair market value (as determined in
good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a resolution of the Board
of Directors) of property received by the Company; provided,
however, that such property is related, ancillary or
complementary to any business of the Company and the
Restricted Subsidiaries conducted on the Issue Date) as a
capital contribution or from the issue or sale of its Capital
Stock (other than Disqualified Stock) of the Company or
Holdings subsequent to the Original Issue Date (other than an
issuance or sale to a Subsidiary of the Company or an employee
stock ownership plan or other trust established by the Company
or any of its Subsidiaries to the extent the purchase by such
plan or trust is financed by Indebtedness of such plan or
trust and for which the Company or a Subsidiary is liable,
directly or indirectly, as a guarantor or otherwise (including
by the making of cash contributions to such plan or trust
which are used to pay interest or principal on such
Indebtedness));
(C) the amount by which Indebtedness of the Company
or its Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other than by a
Subsidiary) of any Indebtedness of the Company or its
Restricted Subsidiaries issued subsequent to the Original
Issue Date and convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the
amount of any cash or other
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property (other than such Capital Stock) distributed by the
Company or any Restricted Subsidiary upon such conversion or
exchange) (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional
shares or scrip);
(D) the aggregate Net Cash Proceeds received
subsequent to the Original Issue Date by the Company or
Holdings (other than from any Restricted Subsidiary) upon the
exercise of any options or warrants to purchase Capital Stock
(other than Disqualified Stock) of the Company or Holdings;
and
(E) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (i)
payments of dividends, repayments of the principal of loans,
return of capital or advances or other transfers of assets to
the Company or any Restricted Subsidiary from Unrestricted
Subsidiaries or (ii) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case
as provided in the definition of "Investment") or the receipt
of proceeds from the sale or other disposition of any portion
of any Investment in an Unrestricted Subsidiary not to exceed,
in the case of any Unrestricted Subsidiary, the amount of
Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary, which amount was
included in the calculation of the amount of Restricted
Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, redemption, retirement or other acquisition
of Capital Stock or Subordinated Obligations of the Company made by
exchange for, or out of the proceeds of the substantially concurrent
sale of, Capital Stock of the Company (other than Disqualified Stock
and other than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan or other trust established by the Company
or any of its Subsidiaries to the extent the purchase by such plan or
trust is financed by Indebtedness of such plan or trust and for which
the Company or a Subsidiary is liable, directly or indirectly, as a
guarantor or
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otherwise (including by the making of cash contributions to such plan
or trust which are used to pay interest or principal on such
Indebtedness)); provided, however, that (A) such purchase, redemption,
retirement or other acquisition shall be excluded in the calculation of
the amount of Restricted Payments and (B) the Net Cash Proceeds from
such sale to the extent so used shall be excluded from Section
4.04(a)(iv)(B);
(ii) any purchase, defeasance, retirement, redemption or other
acquisition of (A) Subordinated Obligations of the Company made by
exchange for, or out of the proceeds of the substantially concurrent
sale of, Indebtedness of the Company which is permitted to be Incurred
pursuant to Section 4.03(b) or (B) Subordinated Obligations of a
Restricted Subsidiary made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Indebtedness of any Restricted
Subsidiary or the Company which is permitted to be Incurred pursuant to
Section 4.03(b); provided, however, that such purchase, defeasance,
retirement, redemption or other acquisition shall be excluded in the
calculation of the amount of Restricted Payments;
(iii) any purchase, retirement, redemption or other
acquisition of Disqualified Stock made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Disqualified Stock;
provided, however, that such purchase, retirement, redemption or other
acquisition shall be excluded in the calculation of the amount of
Restricted Payments;
(iv) any purchase or redemption of Subordinated Obligations
from Net Available Cash to the extent permitted by Section 4.06;
provided, however, that such purchase or redemption shall be excluded
in the calculation of the amount of Restricted Payments;
(v) upon the occurrence of a Change of Control and within 60
days after the completion of the offer to repurchase the Securities
pursuant to Section 4.08 (including the purchase of all Securities
tendered), any purchase, defeasance, retirement, redemption or other
acquisition of Subordinated Obligations required pursuant to the terms
thereof as a result of such Change of Control; provided, however, that
such purchase, defeasance, retirement, redemption or other acquisition
shall be included in the calculation of the amount of Restricted
Payments;
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(vi) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this covenant; provided, however, that such dividend
shall be included in the calculation of the amount of Restricted
Payments;
(vii) the repurchase, for cash or notes, of shares of, or options or
warrants to purchase shares of, or payments to Holdings to enable
Holdings to repurchase shares of, or options or warrants to purchase
shares of, Capital Stock of Holdings, the Company or any of the
Subsidiaries of the Company from present or former Management Investors
in an amount not in excess of $2,000,000 in any one year and $5,000,000
in the aggregate; provided, however, that the amount of such repurchase
shall be included in the calculation of the amount of Restricted
Payments;
(viii) payments in lieu of fractional shares in amount not in excess
of $250,000 in the aggregate;
(ix) payments by the Company to Holdings to pay Federal, state
and local taxes to the extent such taxes are attributable to the
Company and its Restricted Subsidiaries; provided, however, that such
payments shall be excluded from the calculation of the amount of
Restricted Payments;
(x) loans, advances, dividends or distributions by the Company to
Holdings to pay dividends on the common stock of Holdings following a
Public Equity Offering of such stock; but only to the extent that such
loans, advances, dividends or distributions do not exceed 6% per annum
of the net proceeds received by the Company in such Public Equity
Offering; provided, however, that the amount of such loans, advances,
dividends or distributions shall be included in the amount of
Restricted Payments; or
(xi) in each case to the extent such payments by Holdings are
attributable to the Company and its Restricted Subsidiaries, payments
by the Company to Holdings not to exceed an amount necessary to permit
Holdings to (A) make payments in respect to its indemnification
obligations owing to directors, officers or other Persons under
Holding's charter or by-laws or pursuant to written agreements with any
such Person, (B) make payments in respect of its other operational
expenses (other than taxes) incurred in the
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ordinary course of business, or (C) make payments in respect of
indemnification obligations and costs and expenses incurred by Holdings
in connection with any offering of common stock of Holdings; provided,
however, that all such payments shall be included in the calculation of
the amount of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness owed to the Company, (ii) make any
loans or advances to the Company or (iii) transfer any of its property or assets
to the Company, except:
(1) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Original Issue Date;
(2) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness entered into prior to the date on which such Restricted
Subsidiary was acquired or designated as a Restricted Subsidiary by the
Company (other than as consideration in, in contemplation of, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or
was otherwise acquired by the Company);
(3) any encumbrance or restriction pursuant to (x) an
agreement constituting Refinancing Indebtedness of Indebtedness
Incurred pursuant to an agreement referred to in clause (1) or (2) of
this Section or contained in any amendment to an agreement referred to
in clause (1) or (2) of this Section 4.05 or this clause (3) or (y)
Indebtedness Incurred pursuant to clause (i) of paragraph (b) of
Section 4.03; provided, however, that the encumbrances and restrictions
contained in (A) any such refinancing agreement or amendment referred
to in clause (x) above are, collectively, no more restrictive in any
material respect, than the encumbrances and restrictions contained in
such agreements (as determined in good faith by the Company) and (B)
any instrument relating to any Indebtedness referred to in clause (y)
above,
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are, collectively, no more restrictive in any material respect than the
encumbrances and restrictions contained in the Senior Bank Facilities
as in effect on the Original Issue Date (as determined in good faith by
the Company);
(4) in the case of clause (iii) of this Section 4.05, any
encumbrance or restriction contained in security agreements or
mortgages securing Indebtedness of a Restricted Subsidiary which are
not prohibited by Section 4.12 to the extent such encumbrances or
restrictions restrict the transfer of the property or assets subject to
such security agreements or mortgages;
(5) any encumbrance or restriction existing under or by reason
of applicable law;
(6) customary non-assignment provisions of any licensing
agreement or of any lease;
(7) any encumbrance or restriction contained in contracts for
sales of assets otherwise permitted by this Indenture;
(8) with respect to a Restricted Subsidiary, any encumbrance
or restriction imposed pursuant to an agreement that has been entered
into for the sale of all or substantially all of the Capital Stock of
such Restricted Subsidiary; and
(9) Purchase Money Obligations for property acquired in the
ordinary course of business that impose restrictions of the type
referred to in clause (iii) of this Section 4.05.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration (including by way of relief from, or by any
other Person assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the fair
market value, as may be determined (and shall be determined, to the extent an
Asset Disposition (or a series of related Asset Dispositions) involves a fair
market value greater than $1,000,000) in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a resolution of the
Board of Directors
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(including as to the value of all non-cash consideration), of the shares and
assets subject to such Asset Disposition, (ii) in the case of an Asset
Disposition (or a series of related Asset Dispositions) having a fair market
value of $1,000,000 or more at least 80% (or 100% in the case of lease payments)
of the consideration thereof received by the Company or such Restricted
Subsidiary is in the form of cash or cash equivalents and (iii) an amount equal
to 100% of the Net Available Cash from such Asset Disposition is applied by the
Company (or such Restricted Subsidiary, as the case may be) (A) first, to the
extent the Company or such Restricted Subsidiary elects (or is required by the
terms of any Senior Indebtedness), to prepay, repay or purchase Senior
Indebtedness of the Company or a Wholly Owned Subsidiary or, in the case of a
sale by a Restricted Subsidiary which is not a Wholly Owned Subsidiary, to
prepay, repay or purchase Senior Indebtedness of such Restricted Subsidiary (in
each case other than Indebtedness owed to the Company or an Affiliate of the
Company) within 365 days after the later of the date of such Asset Disposition
or the receipt of such Net Available Cash; (B) second, to the extent of the
balance of Net Available Cash after application in accordance with clause (A),
to the extent the Company or such Restricted Subsidiary elects, to reinvest (or
enter into a binding contract to do so) in Additional Assets (including by means
of an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary), within
365 days from the later of such Asset Disposition or the receipt of such Net
Available Cash; (C) third, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B), to make an Offer
(as defined below) to purchase Securities and Original Securities pursuant to
and subject to the conditions of Section 4.06(b) and (D) fourth, to the extent
of the balance of such Net Available Cash after application in accordance with
clauses (A), (B) and (C), to fund (to the extent consistent with any other
applicable provision of this Indenture) any corporate purpose; provided,
however, that in connection with any prepayment, repayment or purchase of
Indebtedness pursuant to clause (A) above, the Company or such Restricted
Subsidiary shall retire such Indebtedness and shall cause the related loan
commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing
provisions of this covenant, the Company and its Restricted Subsidiaries shall
not be required to apply any Net Available Cash in accordance with this covenant
except to the extent that the aggregate Net Available Cash from all Asset
Dispositions in any year which are not applied in
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accordance with this covenant exceed $5,000,000 in such year.
For the purposes of Section 4.06(a)(ii), the following are deemed to be
cash: (w) the assumption of Indebtedness of the Company (other than Disqualified
Stock of the Company) or any Restricted Subsidiary and the release of the
Company or such Restricted Subsidiary from all liability on such Indebtedness in
connection with such Asset Disposition, (x) securities received by the Company
or any Restricted Subsidiary from the transferee that are promptly converted by
the Company or such Restricted Subsidiary into cash, (y) Indebtedness of any
Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of
such Asset Disposition, to the extent that the Company and each other Restricted
Subsidiary is released from any Guarantee of such Indebtedness in connection
with such Asset Disposition, and (z) consideration consisting of Indebtedness of
the Company or any Restricted Subsidiary.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 4.06(a)(iii)(C), the Company shall be
required to purchase Securities and Original Securities, tendered pursuant to an
offer, commenced within 30 days following the expiration of the 365 day period
referred to in Section 4.06(a)(iii)(B) (or, if the Company so elects, at any
time within such 365 day period), by the Company for the Securities and Original
Securities (the "Offer") at a purchase price of 100% of their principal amount
plus accrued and unpaid interest, if any, to the date of purchase in accordance
with the procedures (including prorationing in the event of oversubscription)
set forth in Section 4.06(c) below, in the case of the Securities and Section
4.06 of the Original Indenture, in the case of the Original Securities. If the
aggregate purchase price of Securities and Original Securities tendered pursuant
to the Offer is less than the Net Available Cash allotted to the purchase of the
Securities and Original Securities, the Company shall apply the remaining Net
Available Cash in accordance with Section 4.06(a)(iii)(D) and upon completion of
the purchase of the Securities and Original Securities tendered pursuant to the
Offer, the remaining amount of Net Available Cash, if any, will be reset at
zero. The Company shall not be required to make an Offer for Securities and
Original Securities pursuant to this Section if the Net Available Cash available
therefor (after application of the proceeds as provided in clauses (A) and (B)
of Section 4.06(a)(iii)) is less than $5,000,000 (which lesser amount shall be
carried forward for purposes of determining whether an Offer is required with
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respect to the Net Available Cash from any subsequent Asset Disposition).
(c)(1) Promptly, and in any event within 10 days after the
Company becomes obligated to make an Offer, the Company shall deliver to the
Trustee and send, by first-class mail to each Holder, a written notice stating
that the Holder may elect to have his Securities purchased by the Company either
in whole or in part (subject to prorationing as hereinafter described in the
event the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice
(the "Purchase Date") and shall contain such information concerning the business
of the Company which the Company in good faith believes will enable such Holders
to make an informed decision (which at a minimum will include (i) the most
recently filed Annual Report on Form 10-K (including audited consolidated
financial statements) of the Company, the most recent subsequently filed
Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company
filed subsequent to such Quarterly Report, other than Current Reports describing
Asset Dispositions otherwise described in the offering materials (or
corresponding successor reports), (ii) a description of material developments in
the Company's business subsequent to the date of the latest of such Reports, and
(iii) if material, appropriate pro forma financial information) and all
instructions and materials necessary to tender Securities pursuant to the Offer,
together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided below, the Company shall deliver
to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the
"Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) in Temporary Cash Investments an amount equal to the Offer Amount to be
held for payment in accordance with the provisions of this Section. Upon the
expiration of the period for which the Offer remains open (the "Offer Period"),
the Company shall deliver to the Trustee for cancellation the Securities or
portions thereof which have been properly tendered to and are to be accepted by
the Company. The Trustee (or paying
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agent) shall, on the Purchase Date, mail or deliver payment to each tendering
Holder in the amount of the purchase price. In the event that the aggregate
purchase price of the Securities delivered by the Company to the Trustee is less
than the Offer Amount, the Trustee (or paying agent) shall deliver the excess to
the Company (or if the Company is acting as paying agent, the Company may
release such amount from trust) promptly after the expiration of the Offer
Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than 5:00 PM Eastern Standard
Time one Business Day prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Security
purchased. If at the expiration of the Offer Period the aggregate principal
amount of Securities surrendered by Holders exceeds the Offer Amount, the
Company shall select the Securities to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000, or integral multiples thereof, shall be
purchased). Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate and an Opinion of Counsel stating that such Securities are
to be accepted by the Company pursuant to and in accordance with the terms of
this Section. A Security shall be deemed to have been accepted for purchase at
the time the Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of
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this Section, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or conduct any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") on terms
(i) that are less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of such transaction
in arm's-length dealings with a Person who is not such an Affiliate and (ii)
that, in the event such Affiliate Transaction involves an aggregate amount in
excess of $1,000,000, are not in writing and have not been approved by a
majority of the members of the Board of Directors having no material direct or
indirect financial interest in or with respect to such Affiliate Transaction. In
addition, if such Affiliate Transaction involves an amount in excess of
$5,000,000, a fairness opinion must be obtained from a nationally recognized
appraisal or investment banking firm.
(b) The provisions of Section 4.07(a) shall not prohibit (i)
any Restricted Payment or Permitted Investment permitted to be made pursuant to
Section 4.04, (ii) fees, compensation or employee benefit arrangements paid to,
and any indemnity provided for the benefit of directors, officers or employees
of the Company, Holdings or any Subsidiary of the Company in the ordinary course
of business or any Indebtedness permitted to be Incurred pursuant to Section
4.03(b)(xii), or any payments in respect thereof, (iii) any issuance of
securities, or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors, (iv) transactions pursuant
to agreements entered into or in effect on the Original Issue Date, including
amendments thereto entered into after the Original Issue Date, provided that the
terms of any such amendment are not, in the aggregate, less favorable to the
Company or such Restricted Subsidiary than the terms of such agreement prior to
such amendment and provided further that such agreements are set forth on
Schedule 4.07 hereto, (v) loans or advances to employees that are Affiliates of
the Company in the ordinary course of business, but in any event not to exceed
$2,000,000 in the aggregate outstanding at any one time,
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(vi) any transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries (so long as the other stockholders of any participating
Restricted Subsidiaries which are not Wholly Owned Subsidiaries are not
themselves Affiliates of the Company) or (vii) payments with respect to
Indebtedness Incurred pursuant to Section 4.03(b)(viii).
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require that the Company repurchase all or
any part of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount thereof, plus accrued and unpaid interest, if any, to
the date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date, in
accordance with the terms contemplated in Section 4.08(b); provided, however,
that notwithstanding the occurrence of a Change of Control, the Company shall
not be obligated to purchase the Securities pursuant to this Section 4.08 in the
event that it has mailed notice of its election to redeem all the Securities
under Section 3.07.
(b) Subject to the proviso to Section 4.08(a), within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
with a copy to the Trustee stating, among other things:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase all or any portion in
integral multiples of $1,000 of such Holder's Securities at a purchase
price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase (subject
to the right of Holders of record on a record date to receive interest
due on the relevant interest payment date that is on or prior to the
date of purchase);
(2) the circumstances and relevant facts and financial
information regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its
Securities or any portion thereof purchased.
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(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than 5:00 PM Eastern Standard
Time one Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Security
purchased.
(d) On the purchase date, all Securities purchased by the
Company under this Section shall be delivered to the Trustee for cancellation,
and the Company shall pay the purchase price plus accrued and unpaid interest to
the purchase date, if any, to the Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year and
within 60 days of the end of the first three fiscal quarters of the Company an
Officers' Certificate complying with Section 314(a)(4) of the TIA and stating
that in the course of the performance by the signers of their duties as Officers
of the Company they would normally have knowledge of any Default or Event of
Default and, if such signer does know of such a Default or Event of Default, the
certificate shall describe such Default or Event of Default with particularity
and describe what actions, if any, the Company proposes to take with respect to
such Default or Event of Default.
SECTION 4.10. Further Instruments and Acts. Upon request of
the Trustee, the Company shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
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SECTION 4.11. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries. The Company shall not sell any shares of
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell any shares of its Capital
Stock, except (i) to the Company or a Wholly Owned Subsidiary, (ii) if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary, (iii) directors'
qualifying shares or (iv) in a Public Equity Offering as a result of or after
which a Public Market exists. The proceeds of any sale of such Capital Stock
permitted by clause (ii) shall be treated as Net Available Cash from an Asset
Disposition and must be applied in accordance with the terms of Section 4.06.
SECTION 4.12. Limitation on Liens. (a) The Company shall not,
and shall not permit any Guarantor Subsidiary to, directly or indirectly, create
or permit to exist any Lien (the "Initial Lien") on any of its property or
assets (including Capital Stock), whether owned on the Original Issue Date or
thereafter acquired, securing any Indebtedness other than Senior Indebtedness of
the Company in the case of the Company, or Senior Indebtedness of a Guarantor
Subsidiary, in the case of a Guarantor Subsidiary, unless contemporaneously
therewith effective provision is made to secure the Securities and, in respect
of Liens on any Guarantor Subsidiary's property or assets, the Subsidiary
Guaranty of such Guarantor Subsidiary equally and ratably with (or on a senior
basis to, in the case of Indebtedness subordinated in right of payment to the
Securities and such Subsidiary Guaranty) such obligation for so long as such
obligation is so secured. The preceding sentence shall not require the Company
or any Restricted Subsidiary to equally ratably secure the Securities if the
Initial Lien consists of Permitted Liens.
(b) Any Lien created for the benefit of the Holders of the
Securities pursuant to the foregoing paragraph (a) shall provide by its terms
that such Lien shall be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien.
SECTION 4.13. Limitation on Sale/Leaseback Transactions. The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless (i) the
Company or such Restricted Subsidiary would be entitled to Incur Indebtedness in
an amount equal to the Attributable
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Debt with respect to such Sale/Leaseback Transaction pursuant to Section 4.03
and (ii) the net cash proceeds received by the Company or any Restricted
Subsidiary in connection with such Sale/Leaseback Transaction are at least equal
to the fair market value (in the case of Sale/Leaseback Transactions involving
amounts in excess of $1,000,000, as determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors) of such property and (iii) the transfer of such property is permitted
by, and the Company applies the proceeds of such transaction in compliance with,
Section 4.06.
SECTION 4.14. Limitation on Lines of Business. The Company
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business other than (i) a Related Business and (ii) the making of Permitted
Investments and the operations of any business that is part of a Permitted
Investment. Holdings will not engage in any business other than managing its
investment in the Company.
SECTION 4.15. Future Guarantor Subsidiaries. The Company shall
cause (a) each Restricted Subsidiary that is a Domestic Subsidiary which Incurs
Indebtedness and (b) each Restricted Subsidiary that is not a Domestic
Subsidiary and that after the Original Issue Date enters into a Guarantee of any
of the obligations of the Company, Holdings or any of the Company's Subsidiaries
pursuant to the Senior Bank Facilities to execute and deliver to the Trustee a
supplemental indenture in the form of Exhibit D hereto pursuant to which such
Subsidiary shall Guarantee payment of the Securities as provided in Section
10.06; provided, however, that such Subsidiary shall not be required to execute
and deliver a supplemental indenture pursuant to this Section in the event that
such Subsidiary is a party to this Indenture at the time of such Incurrence of
Indebtedness.
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to any Person unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a corporation
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organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and the Successor Company
(if not the Company) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) except in the case of a merger the sole purpose of which
is to change the Company's jurisdiction of incorporation, immediately
after giving effect to such transaction, the Successor Company would be
able to Incur an additional $1.00 of Indebtedness under Section
4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction; and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
Notwithstanding the foregoing clauses (ii), (iii) and (iv),
any Restricted Subsidiary may consolidate with, merge into or transfer all or
part of its properties and assets to the Company.
The Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture, but the predecessor Company in the case of a conveyance, transfer or
lease of all or substantially all its assets shall not be released from the
obligation to pay the principal of and interest on the Securities.
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ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default"
occurs if:
(1) a default occurs in any payment of interest on any
Security when the same becomes due and payable, whether or not such
payment shall be prohibited by Article X, and such default continues
for a period of 30 days;
(2) a default occurs in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity,
upon optional redemption, upon required repurchase, upon declaration or
otherwise, whether or not such payment shall be prohibited by Article
X;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14 or 4.15 (other than a
failure to purchase Securities when required under Section 4.06 or
4.08) and such failure continues for 30 days after the notice specified
in the penultimate paragraph of this Section 6.01;
(5) the Company or any Guarantor Subsidiary fails to comply
with any of its agreements in the Securities or this Indenture (other
than those referred to in (1), (2), (3) or (4) above) and such failure
continues for 60 days after the notice specified in the penultimate
paragraph of this Section 6.01;
(6) Indebtedness of the Company or any Significant Subsidiary
is not paid within any applicable grace period after final maturity or
the acceleration of any such Indebtedness by the holders of such
Indebtedness because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $5,000,000 or its foreign
currency equivalent at the time;
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(7) the Company or any Restricted 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 any substantial part of its property;
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Restricted Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Restricted Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company or any Restricted Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(9) the rendering of any judgment or decree for the payment of
money in excess of $5,000,000 or its foreign currency equivalent (net
of amounts paid within 30 days of such judgment or decree under any
insurance, indemnity, bond, surety or similar instrument) against
the Company or any Restricted Subsidiary and is not discharged, waived
or stayed and either (A) an enforcement proceeding is commenced with
respect to such judgment or decree or (B) such judgment or decree
remains outstanding the later of (i) the day which is the sixtieth day
after the judgment is rendered and (ii) the day on which any right to
appeal expires; or
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(10) any Subsidiary Guaranty ceases to be in full force and
effect (except as contemplated by the terms thereof) or any Guarantor
Subsidiary shall deny or disaffirm its obligations under this Indenture
or any Subsidiary Guaranty and such Default continues for 10 days.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4) or (5) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal amount of the
outstanding Securities notify the Company of the Default and the Company does
not cure such Default within the time specified in clauses (4) or (5) hereof
after receipt of such notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (3), (6), (7) or (10) and any event which
with the giving of notice or the lapse of time would become an Event of Default
under clause (4), (5), (8) or (9), its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(7) or 6.01(8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Company and the Trustee, may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(7) or 6.01(8) with respect to
the Company occurs and is continuing, the principal of and
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interest on all the Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Securityholders. The Holders of a majority in principal amount of the
Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the outstanding Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability; provided, however, that the Trustee may take any other
action deemed
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proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Security holder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1) or 6.01(2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
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SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents and take such other
actions, including participating as a member, voting or otherwise, of any
committee of creditors appointed in the matter, as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Company, any Subsidiary, their
respective creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
Nothing herein shall be deemed to empower the Trustee to
authorize or consent to, or accept or adopt on behalf of any Securityholder, any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Securityholder, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money
or property from the Company pursuant to this Article VI, 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 Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Trustee shall mail to each Securityholder and the Company
a notice that
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states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section does not apply
to a suit by the Company, a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 6.13. Restoration of Rights and Remedies. If the
Trustee or any Securityholder has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Securityholder, then, and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Securityholders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and Securityholders
shall continue as though no such proceeding had been instituted.
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ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section and Section 7.02(e);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a written
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
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(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. Subject to Section 7.01: (a)
The Trustee may conclusively rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it here under
in good faith and in accordance with the advice or opinion of such counsel.
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(f) The Trustee shall be under no obligation to exercise any
of the rights or powers created in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, it will not be responsible for the use
or application of any monies received by a Paying Agent other than the Trustee,
and it shall not be responsible for any statement of the Company in this
Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Trust Officer of the Trustee, the Trustee
shall mail to each Securityholder notice of the Default within the earlier of 90
days after it occurs or 30 days after it is known to a Trust Officer or written
notice of it is received by the Trustee. Except in the case of a Default in
payment of principal of, premium (if any) or interest on any Security (including
payments pursuant to the mandatory redemption provisions of such Security, if
any), the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
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SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with May 15, 1998, and in any event
prior to July 15 in each year, the Trustee shall mail to each Securityholder a
brief report dated as of May 15 that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report shall be transmitted). The Trustee will
also comply with TIA Section 313(b) and TIA Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee, Paying Agent and Registrar from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and other professionals. Any costs and expenses associated
with the Exchange Securities shall be paid by the Company. The Company shall
indemnify the Trustee, Paying Agent, Registrar, and each of their officers,
directors and employees (each in their respective capacities), for and hold each
of them harmless against any and all loss, liability or expense (including
attorneys' fees) incurred by them without negligence or bad faith on their part
in connection with the administration of this trust and the performance of their
duties hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the acceptance, exercise or
performance of any of its powers or duties hereunder. The Trustee, Paying Agent
and Registrar shall notify the Company of any claim for which they may seek
indemnity promptly upon obtaining actual knowledge thereof; provided that any
failure so to notify the Company shall not relieve the Company of its indemnity
obligations hereunder except to the extent the Company shall have been adversely
affected thereby. The Company shall defend the claim and the indemnified party
shall provide reasonable cooperation at the Company's expense in the defense.
Such indemnified
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parties may have separate counsel and the Company shall pay the fees and
expenses of such counsel; provided that the Company shall not be required to pay
such fees and expenses if it assumes such indemnified parties' defense and, in
such indemnified parties' reasonable judgment, there is no conflict of interest
between the Company and such parties in connection with such defense. The
Company need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by an indemnified party through such party's own wilful
misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee, Paying Agent or
Registrar incurs expenses after the occurrence of a Default specified in Section
6.01(7) or 6.01(8) with respect to the Company, the expenses are intended to
constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company in writing. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
Company and the Trustee and may appoint a successor Trustee with the consent of
the Company, which shall not be unreasonably withheld. The Company shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the
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office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is
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anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are out standing if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article III hereof and the Company irrevocably deposits with the
Trustee funds or U.S. Government Obligations on which payment of principal and
interest when due will be sufficient to pay at maturity or upon redemption all
outstanding Securities, including interest thereon to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.07), and
if in either case the Company pays all other sums payable hereunder by the
Company including, but not limited to fees and expenses of the Trustee and its
counsel, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
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(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 4.15,
5.01(iii) and 5.01(iv) and the operation of Sections 6.01(4), 6.01(6), 6.01(7)
(with respect to Restricted Subsidiaries only), 6.01(8) (with respect to
Restricted Subsidiaries only), 6.01(9) and 6.01(10) ("covenant defeasance
option"). The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Sections 6.01(4),
6.01(6), 6.01(7) (with respect to Restricted Subsidiaries only), 6.01(8) (with
respect to Restricted Subsidiaries only), 6.01(9) and 6.01(10) or because of the
failure of the Company to comply with Sections 5.01(iii) and 5.01(iv).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal,
premium (if any) and interest on the Securities to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without
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reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay principal and interest
when due on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(7) or 6.01(8) with
respect to the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article X;
(5) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(8) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance
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and discharge of the Securities as contemplated by this Article VIII
have been complied with.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to this Section 8.02 or the principal, premium,
if any, and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 8.02 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request, in writing, by the Company any cash in dollars or U.S. Government
Obligations held by it as provided in paragraph (d) above which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant
to this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the
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Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations other than any tax, fee or other charge which
by law is for the account of the Securityholders.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
SECTION 8.07. Concurrent Defeasance Of Securities And Original
Securities. The Company shall not exercise either of the defeasance options
described in this Article with respect to the Securities unless it defeases the
Original Securities equivalently and substantially simultaneously. Similarly,
the Company shall not defease the Original Securities unless it defeases the
Securities equivalently and substantially simultaneously.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company, the
Guarantor Subsidiaries and the Trustee may amend this Indenture or the
Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 4.15 or Article V;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
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provided, however, that the uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code;
(4) to make any change in Article X or Article XII that would
limit or terminate the benefits available to any holder of Senior
Indebtedness (or Representative therefor) under Article X or Article
XII;
(5) to add further Guarantees with respect to the Securities
or to release Guarantor Subsidiaries when permitted by the terms
hereof, or to secure the Securities;
(6) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(7) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA;
(8) to make any change that does not adversely affect the
rights of any Securityholder; or
(9) to provide for the issuance and authorization of the
Exchange Securities.
An amendment under this Section may not make any change that
adversely affects the rights under Article X or Article XII of any holder of
Senior Indebtedness of the Company or any Guarantor Subsidiary then outstanding
unless the holders of such Senior Indebtedness (or any group or representative
thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company, the
Guarantor Subsidiaries and the Trustee may amend this Indenture or the
Securities without notice to any Securityholder but with the written consent of
the Holders
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of at least a majority in principal amount of the Securities. The Holders of at
least a majority in principal amount of the Securities may waive compliance by
the Company or any Guarantor Subsidiary with any provision or covenant of this
Indenture or the Securities. However, without the consent of each Securityholder
affected, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment or waiver;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of
any Security;
(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article III;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any change in Article X or Article XII that adversely
affects the rights of any Securityholder under Article X or Article
XII;
(7) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities.
(8) modify the Subsidiary Guarantees (except as contemplated
by the terms thereof or of this Indenture) in any manner adverse to the
Holders; or
(9) make any change in Section 6.04, Section 6.07 or the third
sentence of this Section.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article X or Article XII of any holder of
Senior Indebtedness of the Company or a Guarantor Subsidiary then outstanding
unless
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the holders of such Senior Indebtedness (or any group or representative
thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Security holder.
An amendment or waiver becomes effective once the consents from the Holders of
the requisite percentage in principal amount of outstanding Securities are
received by the Company or the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
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notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
complies with the provisions hereof (including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Subordination of the Securities
SECTION 10.01. Agreement To Subordinate. The Company agrees,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article X, to the prior payment in full of
all Senior Indebtedness of the Company and that the subordination is for the
benefit of and enforceable by the holders of Senior Indebtedness of the Company.
The Securities shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Company, including, without limitation, the
Original Securities, and only Indebtedness of the Company that is Senior
Indebtedness of the Company shall rank senior to the Securities in accordance
with the provisions set forth
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herein. For purposes of these subordination provisions, the Indebtedness
evidenced by the Securities is deemed to include the liquidated damages payable
pursuant to the provisions set forth in the Securities and the Exchange and
Registration Rights Agreement. All provisions of this Article X shall be
subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company and its properties:
(1) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full of such Senior Indebtedness before
Securityholders shall be entitled to receive any payment of principal
of or interest on the Securities; and
(2) until the Senior Indebtedness of the Company is paid in
full, any payment or distribution to which Securityholders would be
entitled but for this Article X shall be made to holders of such Senior
Indebtedness as their respective interests may appear.
SECTION 10.03. Default on Senior Indebtedness of the Company.
The Company may not pay the principal of, premium (if any) or interest on the
Securities or make any deposit pursuant to Section 8.01 and may not otherwise
purchase, redeem or otherwise retire any Securities (collectively, "pay the
Securities") if (i) any Senior Indebtedness of the Company is not paid when due
or (ii) any other default on Senior Indebtedness of the Company occurs and the
maturity of such Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Senior Indebtedness has been paid in
full; provided, however, that the Company may pay the Securities without regard
to the foregoing if the Company and the Trustee receive written notice approving
such payment from the Representative of the holders of such Senior Indebtedness
with respect to which either of the events in clause (i) or (ii) of this
sentence has occurred and is continuing. During the continuance of any default
(other than a default described in clause (i) or (ii) of the preceding sentence)
with respect to any Designated Senior Indebtedness of the Company pursuant to
which the maturity thereof may be accelerated immediately without further
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notice (except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace periods, the Company may not pay the
Securities for a period (a "Payment Blockage Period") commencing upon the
receipt by the Trustee (with a copy to the Company) of written notice (a
"Blockage Notice") of such default from the Representative of the holders of
the Designated Senior Indebtedness of the Company specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (i) by written notice to the Trustee
(with a copy to the Company) from the Person or Persons who gave such Blockage
Notice, (ii) because such Designated Senior Indebtedness has been repaid in full
or (iii) because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this Section), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments
on the Securities after such Payment Blockage Period, including any missed
payments. Not more than one Blockage Notice may be given in any consecutive
360-day period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness of the Company during such period; provided,
however, that if any Blockage Notice within such 360-day period is given by or
on behalf of any holders of Designated Senior Indebtedness of the Company (other
than the Bank Indebtedness), the Representative of the Bank Indebtedness may
give another Blockage Notice within such period; provided further, however, that
in no event may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 360
consecutive day period.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness of the Company (or the Representative of such holders) of
the acceleration. If any Designated Senior Indebtedness of the Company is
outstanding, the Company may not pay the Securities until five Business Days
after such holders or the Representative of the holders of the Designated Senior
Indebtedness of the Company receive notice of such acceleration and, thereafter,
may pay the Securities only if this Article X otherwise permits payment at that
time.
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SECTION 10.05. When Distribution Must Be Paid Over. If a
payment or distribution is made to Securityholders that because of this Article
X should not have been made to them, the Securityholders who receive the payment
or distribution shall hold such payment or distribution in trust for holders of
the Senior Indebtedness of the Company and pay it over to them as their
respective interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of
the Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness of the Company to receive distributions applicable to Senior
Indebtedness of the Company. A distribution made under this Article X to holders
of Senior Indebtedness of the Company which otherwise would have been made to
Securityholders is not, as between the Company and Securityholders, a payment by
the Company on Senior Indebtedness of the Company.
SECTION 10.07. Relative Rights. This Article X defines the
relative rights of Securityholders and holders of Senior Indebtedness of the
Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default, subject to the rights of
holders of Senior Indebtedness of the Company to receive distributions
otherwise payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of
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such payment, a Trust Officer of the Trustee receives written notice
satisfactory to it that payments may not be made under this Article X. The
Company, the Registrar or co-registrar, the Paying Agent, a Representative or a
holder of Senior Indebtedness of the Company may give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Company has a
Representative, only the Representative may give the notice. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness of the
Company (or a Representative of such holder) to establish that such notice has
been given by a holder of such Senior Indebtedness or Representative thereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of the Company with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article X with respect to any Senior Indebtedness of the Company which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness of the Company; and nothing in Article VII shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article X shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the Company, the distribution may be made and the notice given
to their Representative (if any).
SECTION 10.11. Article X Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article X shall not be construed
as preventing the occurrence of a Default. Nothing in this Article X shall have
any effect on the right of the Securityholders or the Trustee to accelerate the
maturity of the Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article VIII by the Trustee
for the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of
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any Senior Indebtedness of the Company or subject to the restrictions set forth
in this Article X, and none of the Securityholders shall be obligated to pay
over any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article X, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
10.02 are pending, (ii) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Security holders or (iii) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness of the Company and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article X. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article X, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of the
Company held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article X, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article X.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of the Company as provided in this Article X and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Company. The Trustee shall
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not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of
the Company and shall not be liable to any such holders if it shall mistakenly
pay over or distribute to Securityholders or the Company or any other Person,
money or assets to which any holders of Senior Indebtedness of the Company shall
be entitled by virtue of this Article X or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness of
the Company on Subordination Provisions. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of the Company, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of such Senior Indebtedness of the Company shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
SECTION 10.17. Trustee's Compensation Not Prejudiced. Nothing
in this Article shall apply to amounts due to the Trustee pursuant to other
sections of this Indenture.
ARTICLE XI
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees. Each Guarantor
Subsidiary hereby jointly and severally unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (a) the full and punctual payment
of principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under this Indenture (including obligations to the Trustee) and the
Securities and (b) the full and punctual performance within applicable grace
periods of all other obligations of the Company whether for expenses,
indemnification or otherwise under this Indenture and the Securities (all the
foregoing being hereinafter collectively called the "Obligations"). Each
Guarantor Subsidiary further agrees that the Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Guarantor Subsidiary, and that
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each such Guarantor Subsidiary shall remain bound under this Article XI
notwithstanding any extension or renewal of any Obligation.
Each Guarantor Subsidiary waives presentation to, demand of,
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Guarantor Subsidiary waives notice
of any default under the Securities or the Obligations. The obligations of each
Guarantor Subsidiary hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the
Obligations or any of them; (e) the failure of any Holder or Trustee to exercise
any right or remedy against any other guarantor of the Obligations; or (f) any
change in the ownership of such Guarantor Subsidiary, except as provided in
Section 11.02(b).
Each Guarantor Subsidiary further agrees that its Subsidiary
Guaranty herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
The obligations of each Guarantor Subsidiary hereunder shall
not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality
or unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor Subsidiary herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of any
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Guarantor Subsidiary or would otherwise operate as a discharge of any Guarantor
Subsidiary as a matter of law or equity.
Each Guarantor Subsidiary further agrees that its Subsidiary
Guaranty herein shall continue to be effective or be reinstated, as the case may
be, if at any time payment, or any part thereof, of principal of or interest on
any Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor Subsidiary by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Obligation, each Guarantor Subsidiary hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid principal amount of such Obligations, (ii) accrued
and unpaid interest on such Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary Obligations of the Company to the Holders
and the Trustee.
Each Guarantor Subsidiary agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby until payment in full of all Obligations. Each
Guarantor Subsidiary further agrees that, as between it, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article VI for
the purposes of any Subsidiary Guaranty herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor Subsidiary for the purposes of this Section.
Each Guarantor Subsidiary also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section.
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SECTION 11.02. Limitation on Liability. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum,
aggregate amount of the obligations guaranteed hereunder by any Guarantor
Subsidiary shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Indenture, as it relates to any Guarantor Subsidiary,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
(b) This Subsidiary Guaranty as to any Guarantor Subsidiary
shall terminate and be of no further force or effect upon the sale or other
transfer (i) by such Guarantor Subsidiary of all or substantially all of its
assets or (ii) by the Company of all of its stock or other equity interests in
such Guarantor Subsidiary, to a Person that is not an Affiliate of the Company;
provided, however, that such sale or transfer shall be deemed to constitute an
Asset Disposition and the Company shall comply with its obligations under
Section 4.06.
SECTION 11.03. Successors and Assigns. This Article XI shall
be binding upon each Guarantor Subsidiary and its successors and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article XI shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article XI
at law, in equity, by statute or otherwise.
SECTION 11.05. Modification. No modification, amendment or
waiver of any provision of this Article XI, nor the consent to any departure by
any Guarantor Subsidiary therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific
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instance and for the purpose for which given. No notice to or demand on any
Guarantor Subsidiary in any case shall entitle such Guarantor Subsidiary to any
other or further notice or demand in the same, similar or other circumstances.
SECTION 11.06. Initial Guarantors; Execution of Supplemental
Indenture for Future Guarantor Subsidiaries. (a) Upon their execution and
delivery of this Indenture, the Initial Guarantors will each become Guarantor
Subsidiaries.
(b) Each Subsidiary which is required to become a Guarantor
Subsidiary pursuant to Section 4.15 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to
which such Subsidiary shall become a Guarantor Subsidiary under this Article XI
and shall guarantee the Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guaranty of such Guarantor
Subsidiary is a legal, valid and binding obligation of such Guarantor
Subsidiary, enforceable against such Guarantor Subsidiary in accordance with its
terms.
ARTICLE XII
Subordination of the Subsidiary Guaranties
SECTION 12.01. Agreement To Subordinate. Each Guarantor
Subsidiary agrees, and each Securityholder by accepting a Security agrees, that
the Obligations of a Guarantor Subsidiary are subordinated in right of payment,
to the extent and in the manner provided in this Article XII, to the prior
payment in full of all Senior Indebtedness of such Guarantor Subsidiary and that
the subordination is for the benefit of and enforceable by the holders of Senior
Indebtedness of such Guarantor Subsidiary. The Obligations with respect to a
Guarantor Subsidiary shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of such Guarantor Subsidiary, and only Indebtedness of
such Guarantor Subsidiary that is Senior Indebtedness of such Guarantor
Subsidiary shall rank
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senior to the Obligations of such Guarantor Subsidiary in accordance with the
provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of a Guarantor Subsidiary to creditors
upon a total or partial liquidation or a total or partial dissolution of such
Guarantor Subsidiary or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Guarantor Subsidiary and its
properties:
(1) holders of Senior Indebtedness of such Guarantor
Subsidiary shall be entitled to receive payment in full of such Senior
Indebtedness before Securityholders shall be entitled to receive any
payment of any Obligations from such Guarantor Subsidiary; and
(2) until the Senior Indebtedness of such Guarantor Subsidiary
is paid in full, any payment or distribution to which Securityholders
would be entitled but for this Article XII shall be made to holders of
such Senior Indebtedness as their respective interests may appear.
SECTION 12.03. Default on Senior Indebtedness of a Guarantor
Subsidiary. A Guarantor Subsidiary may not make any payment pursuant to any of
the Obligations or repurchase, redeem or otherwise retire any Securities
(collectively, "pay its Guaranty") if (i) any Senior Indebtedness of such
Guarantor Subsidiary is not paid when due or (ii) any other default on Senior
Indebtedness of such Guarantor Subsidiary occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such acceleration has been
rescinded or (y) such Senior Indebtedness has been paid in full; provided,
however, that such Guarantor Subsidiary may pay its Guaranty without regard to
the foregoing if such Guarantor Subsidiary and the Trustee receive written
notice approving such payment from the Representative of the holders of such
Senior Indebtedness with respect to which either of the events in clause (i) or
(ii) of this sentence has occurred and is continuing. During the continuance of
any default (other than a default described in clause (i) or (ii) of the
preceding sentence) with respect to any Designated Senior Indebtedness of a
Guarantor Subsidiary pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the
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expiration of any applicable grace periods, such Subsidiary Guarantor may not
pay its Guaranty for a period (a "Guarantor Subsidiary Payment Blockage Period")
commencing upon the receipt by the Trustee (with a copy to such Guarantor
Subsidiary and the Company) of written notice (a "Guarantor Subsidiary Blockage
Notice") of such default from the Representative of the holders of the
Designated Senior Indebtedness of such Guarantor Subsidiary specifying an
election to effect a Guarantor Subsidiary Payment Blockage Period and ending 179
days thereafter (or earlier if such Guarantor Subsidiary Payment Blockage Period
is terminated (i) by written notice to the Trustee (with a copy to such
Guarantor Subsidiary and the Company) from the Person or Persons who gave such
Guarantor Subsidiary Blockage Notice, (ii) because such Designated Senior
Indebtedness has been repaid in full or (iii) because the default giving rise to
such Guarantor Subsidiary Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section),
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, such Guarantor Subsidiary may resume to pay its Guaranty after
such Guarantor Subsidiary Payment Blockage Period, including any missed
payments. Not more than one Guarantor Subsidiary Blockage Notice may be given
with respect to a Guarantor Subsidiary in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness of such Guarantor Subsidiary during such period; provided, however,
that if any Guarantor Subsidiary Blockage Notice within such 360-day period is
given by or on behalf of any holders of Designated Senior Indebtedness of such
Guarantor Subsidiary (other than the Bank Indebtedness), the Representative of
the Bank Indebtedness may give another Guarantor Subsidiary Blockage Notice
within such period; provided further, however, that in no event may the total
number of days during which any Guarantor Subsidiary Payment Blockage Period or
Periods is in effect exceed 179 days in the aggregate during any 360 consecutive
day period.
SECTION 12.04. Demand for Payment. If payment of the
Securities is accelerated because of an Event of Default and a demand for
payment is made on a Guarantor Subsidiary pursuant to Article XI the Trustee
shall promptly notify the holders of the Designated Senior Indebtedness of such
Guarantor Subsidiary (or the Representative of such holders) of such demand. If
any Designated Senior Indebtedness of such Guarantor Subsidiary is outstanding,
such Guarantor
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Subsidiary may not pay its Guaranty until five Business Days after such holders
or the Representative of the holders of the Designated Senior Indebtedness of
such Guarantor Subsidiary receive notice of such demand and, thereafter, may pay
its Guaranty only if this Article XII otherwise permits payment at that time.
SECTION 12.05. When Distribution Must Be Paid Over. If a
payment or distribution is made to Securityholders that because of this Article
XII should not have been made to them, the Securityholders who receive the
payment or distribution shall hold such payment or distribution in trust for
holders of the Senior Indebtedness of the relevant Guarantor Subsidiary and pay
it over to them as their respective interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness of a
Guarantor Subsidiary is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness of such Guarantor Subsidiary to receive distributions applicable to
Senior Indebtedness of such Guarantor Subsidiary. A distribution made under this
Article XII to holders of Senior Indebtedness of such Guarantor Subsidiary which
otherwise would have been made to Securityholders is not, as between such
Guarantor Subsidiary and Securityholders, a payment by such Guarantor Subsidiary
on Senior Indebtedness of such Guarantor Subsidiary.
SECTION 12.07. Relative Rights. This Article XII defines the
relative rights of Securityholders and holders of Senior Indebtedness of a
Guarantor Subsidiary. Nothing in this Indenture shall:
(1) impair, as between a Guarantor Subsidiary and
Securityholders, the obligation of a Guarantor Subsidiary which is
absolute and unconditional, to pay its Obligations to the extent set
forth in Article XI; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by a Guarantor Subsidiary under
its Obligations, subject to the rights of holders of Senior
Indebtedness of such Guarantor Subsidiary to receive distributions
otherwise payable to Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by a
Guarantor Subsidiary. No right of any holder of Senior Indebtedness of a
Guarantor Subsidiary to enforce the
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subordination of the Obligations of such Guarantor Subsidiary shall be impaired
by any act or failure to act by such Guarantor Subsidiary or by its failure to
comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. A Guarantor Subsidiary, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of a Guarantor Subsidiary may give the notice; provided, however,
that, if an issue of Senior Indebtedness of a Guarantor Subsidiary has a
Representative, only the Representative may give the notice. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness of a
Guarantor Subsidiary (or a Representative of such holder) to establish that such
notice has been given by a holder of such Senior Indebtedness or Representative
thereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of a Guarantor Subsidiary with the same rights it would have
if it were not Trustee. The Registrar and co-registrar and the Paying Agent may
do the same with like rights. The Trustee shall be entitled to all the rights
set forth in this Article XII with respect to any Senior Indebtedness of a
Guarantor Subsidiary which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness of such Guarantor Subsidiary; and
nothing in Article VII shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article XII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
SECTION 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of a Guarantor Subsidiary, the distribution may be made and the
notice given to their Representative (if any).
SECTION 12.11. Article XII Not To Prevent Events of Default or
Limit Right To Accelerate. The failure of a Guarantor Subsidiary to make a
payment on any of its Obligations by reason of any provision in this Article XII
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shall not be construed as preventing the occurrence of a default by such
Guarantor Subsidiary under its Obligations. Nothing in this Article XII shall
have any effect on the right of the Securityholders or the Trustee to make a
demand for payment on a Guarantor Subsidiary pursuant to Article XI.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Security holders or (iii) upon the Representatives for the holders of Senior
Indebtedness of a Guarantor Subsidiary for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness of a Guarantor Subsidiary and other Indebtedness of a
Guarantor Subsidiary, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article XII. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of a Guarantor Subsidiary to participate in any payment or
distribution pursuant to this Article XII, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness of such Guarantor Subsidiary held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article XII, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article XII.
SECTION 12.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of each of the Guarantor Subsidiaries as provided in this
Article XII and appoints the Trustee as attorney-in-fact for any and all such
purposes.
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SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Guarantor Subsidiary. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness of a Guarantor
Subsidiary and shall not be liable to any such holders if it shall mistakenly
pay over or distribute to Securityholders or the relevant Guarantor Subsidiary
or any other Person, money or assets to which any holders of Senior Indebtedness
of such Guarantor Subsidiary shall be entitled by virtue of this Article XII or
otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Guarantor Subsidiary on Subordination Provisions. Each Securityholder by
accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to
each holder of any Senior Indebtedness of a Guarantor Subsidiary, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE XIII
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail or by national
overnight courier service addressed as follows:
if to the Company or any Guarantor Subsidiary:
2121 Brooks Avenue
Neenah, WI 54957
Attention of:
Chief Financial Officer
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if to the Trustee:
United States Trust Company of New York
114 West 47th Street, 25th Floor
New York, New York 10036
Attention: Corporate Trust Division
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Security holder shall
be mailed to the Securityholder at the Securityholder's address as it appears
on the registration books of the Registrar and shall be sufficiently given if so
mailed by first class mail within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it, except that
any such notice to the Trustee must be received by a Trust Officer to be duly
given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice.
SECTION 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee and complying with Section 11.05 stating
that, in the opinion of the signers, all conditions precedent, if any,
provided for
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in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee and complying with Section 11.05 stating
that, in the opinion of such counsel, all such conditions precedent
have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the fore going, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action
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by or a meeting of Securityholders. The Registrar and the Paying Agent may make
reasonable rules for their functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which commercial banking institutions (including,
without limitation, the Federal Reserve System) are authorized or required by
law to close in New York City. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 13.09. Governing Law. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company of any Guarantor
Subsidiary shall not have any liability for any obligations of the Company or
any Guarantor Subsidiary under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 13.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 13.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 13.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
NEENAH CORPORATION,
by
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Name:
Title:
NEENAH TRANSPORT, INC.,
by
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Name:
Title:
HARTLEY CONTROLS CORPORATION
by
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Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK,
by
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Name:
Title: