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EXHIBIT 4.1
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GENERAL BINDING CORPORATION,
AS ISSUER,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
AND
FIRST UNION NATIONAL BANK,
AS TRUSTEE
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INDENTURE
DATED AS OF MAY 27, 1998
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UP TO $225,000,000
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CROSS-REFERENCE TABLE
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.
(a)(5).................................................................... 7.08; 7.10
(b)................................................................ 7.08; 7.10; 13.02
(c)............................................................................. N.A.
311(a)........................................................................... 7.11
(b)............................................................................. 7.11
(c)............................................................................. N.A.
312(a)........................................................................... 2.05
(b)............................................................................. 13.03
(c)............................................................................. 13.03
313(a)........................................................................... 7.06
(b)(1).......................................................................... N.A.
(b)(2).......................................................................... 7.06
(c)....................................................................... 7.06; 13.02
(d)............................................................................. 7.06
314(a)............................................................... 4.06; 4.08; 13.02
(b)............................................................................. N.A.
(c)(1).......................................................................... 13.04
(c)(2).......................................................................... 13.04
(c)(3).......................................................................... N.A.
(d)............................................................................. N.A.
(e)............................................................................. 13.05
(f)............................................................................. N.A.
315(a)......................................................................... 7.01(b)
(b)....................................................................... 7.05; 13.02
(c)........................................................................... 7.01(a)
(d)........................................................................... 7.01(c)
(e)............................................................................. 6.11
316(a)(last sentence)............................................................. 2.09
(a)(1)(A)........................................................................ 6.05
(a)(1)(B)........................................................................ 6.04
(a)(2)........................................................................... N.A.
(b).............................................................................. 6.07
(c).............................................................................. 9.04
317(a)(1)......................................................................... 6.08
(a)(2)........................................................................... 6.09
(b).............................................................................. 2.04
318(a)........................................................................... 13.01
(c)............................................................................. 13.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE...............................1
SECTION 1.01. Definitions..........................................1
SECTION 1.02. Incorporation by Reference of TIA...................28
SECTION 1.03. Rules of Construction...............................28
ARTICLE TWO
THE NOTES...............................................................28
SECTION 2.01. Form and Dating.....................................29
SECTION 2.02. Execution and Authentication; Aggregate
Principal Amount....................................30
SECTION 2.03. Registrar and Paying Agent..........................31
SECTION 2.04. Paying Agent To Hold Assets in Trust................32
SECTION 2.05. Holder Lists........................................32
SECTION 2.06. Transfer and Exchange...............................32
SECTION 2.07. Replacement Notes...................................33
SECTION 2.08. Outstanding Notes...................................33
SECTION 2.09. Treasury Notes......................................34
SECTION 2.10. Temporary Notes.....................................34
SECTION 2.11. Cancellation........................................34
SECTION 2.12. Defaulted Interest..................................35
SECTION 2.13. CUSIP Number........................................36
SECTION 2.14. Deposit of Monies...................................36
SECTION 2.15. Restrictive Legends.................................36
SECTION 2.16. Book-Entry Provisions for Global Security...........36
SECTION 2.17. Special Transfer Provisions.........................38
SECTION 2.18. Liquidated Damages Under Registration
Rights Agreement....................................40
ARTICLE THREE
REDEMPTION..............................................................41
SECTION 3.01. Notices to Trustee..................................41
SECTION 3.02. Selection of Notes To Be Redeemed...................41
SECTION 3.03. Optional Redemption.................................41
SECTION 3.04. Notice of Redemption................................42
SECTION 3.05. Effect of Notice of Redemption......................43
SECTION 3.06. Deposit of Redemption Price.........................43
SECTION 3.07. Notes Redeemed in Part..............................44
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ARTICLE FOUR
COVENANTS.........................................................................44
SECTION 4.01. Payment of Notes..............................................44
SECTION 4.02. Maintenance of Office or Agency...............................44
SECTION 4.03. Corporate Existence...........................................45
SECTION 4.04. Payment of Taxes and Other Claims.............................45
SECTION 4.05. Maintenance of Properties and Insurance.......................45
SECTION 4.06. Compliance Certificate; Notice of Default.....................46
SECTION 4.07. Compliance with Laws..........................................47
SECTION 4.08. Reports to Holders............................................47
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.......................47
SECTION 4.10. Limitation on Restricted Payments.............................47
SECTION 4.11. Limitation on Transactions with Affiliates....................50
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness...........51
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.............................51
SECTION 4.14. Change of Control.............................................52
SECTION 4.15. Limitation on Asset Sales.....................................54
SECTION 4.16. Limitation on Preferred Stock of Restricted Subsidiaries......57
SECTION 4.17. Limitation on Restricted and Unrestricted Subsidiaries........57
SECTION 4.18. Limitation on Liens...........................................59
SECTION 4.19. Conduct of Business...........................................59
SECTION 4.20. Additional Subsidiary Guarantees..............................59
SECTION 4.21. Limitation of Guarantees by Restricted Subsidiaries...........60
SECTION 4.22. Prohibition on Incurrence of Senior Subordinated Debt.........61
ARTICLE FIVE
SUCCESSOR CORPORATION.............................................................61
SECTION 5.01. Merger, Consolidation and Sale of Assets......................61
SECTION 5.02. Successor Corporation Substituted.............................62
ARTICLE SIX
REMEDIES..........................................................................63
SECTION 6.01. Events of Default.............................................63
SECTION 6.02. Acceleration..................................................64
SECTION 6.03. Other Remedies................................................65
SECTION 6.04. Waiver of Past Defaults.......................................66
SECTION 6.05. Control by Majority...........................................66
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SECTION 6.06. Limitation on Suits...........................................66
SECTION 6.07. Right of Holders To Receive Payment...........................67
SECTION 6.08. Collection Suit by Trustee....................................67
SECTION 6.09. Trustee May File Proofs of Claim..............................67
SECTION 6.10. Priorities....................................................68
SECTION 6.11. Undertaking for Costs.........................................68
SECTION 6.12. Restoration of Rights and Remedies............................68
ARTICLE SEVEN
TRUSTEE..........................................................................69
SECTION 7.01. Duties of Trustee.............................................69
SECTION 7.02. Rights of Trustee.............................................70
SECTION 7.03. Individual Rights of Trustee..................................71
SECTION 7.04. Trustee's Disclaimer..........................................71
SECTION 7.05. Notice of Default.............................................71
SECTION 7.06. Reports by Trustee to Holders.................................72
SECTION 7.07. Compensation and Indemnity....................................72
SECTION 7.08. Replacement of Trustee........................................73
SECTION 7.09. Successor Trustee by Merger, Etc..............................74
SECTION 7.10. Eligibility; Disqualification.................................74
SECTION 7.11. Preferential Collection of Claims Against the Company.........75
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE...............................................75
SECTION 8.01. Termination of Company's Obligations..........................75
SECTION 8.02. Application of Trust Money....................................77
SECTION 8.03. Repayment to the Company......................................78
SECTION 8.04. Reinstatement.................................................78
SECTION 8.05. Acknowledgment of Discharge by Trustee........................78
ARTICLE NINE
MODIFICATION OF THE INDENTURE....................................................79
SECTION 9.01. Without Consent of Holders....................................79
SECTION 9.02. With Consent of Holders.......................................79
SECTION 9.03. Compliance with TIA...........................................80
SECTION 9.04. Revocation and Effect of Consents.............................80
SECTION 9.05. Notation on or Exchange of Notes..............................80
SECTION 9.06. Trustee To Sign Amendments, Etc...............................81
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SECTION 9.07. Trustee To Sign Consents......................................80
ARTICLE TEN
SUBORDINATION.....................................................................81
SECTION 10.01. Notes Subordinated to Senior Indebtedness....................81
SECTION 10.02. Suspension of Payment When Senior Indebtedness
is in Default................................................82
SECTION 10.03. Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization
of Company...................................................83
SECTION 10.04. Holders To Be Subrogated to Rights of Holders
of Senior Indebtedness.......................................85
SECTION 10.05. Obligations of the Company Unconditional.....................85
SECTION 10.06. Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice.........................................86
SECTION 10.07. Application by Trustee of Assets Deposited with It...........86
SECTION 10.08. No Waiver of Subordination Provisions........................87
SECTION 10.09. Holders Authorize Trustee To Effectuate Subordination
of Notes.....................................................87
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness.................88
SECTION 10.11. This Article Ten Not To Prevent Events of Default............88
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.................................................88
ARTICLE ELEVEN
GUARANTEE OF NOTES................................................................89
SECTION 11.01. Unconditional Guarantee......................................89
SECTION 11.02. Limitations on Guarantees....................................90
SECTION 11.03. Execution and Delivery of Guarantee..........................90
SECTION 11.04. Release of a Subsidiary Guarantor............................91
SECTION 11.05. Waiver of Subrogation........................................92
SECTION 11.06. No Set-Off...................................................92
SECTION 11.07. Obligations Absolute.........................................93
SECTION 11.08. Obligations Continuing.......................................93
SECTION 11.09. Obligations Not Reduced......................................93
SECTION 11.10. Obligations Reinstated.......................................93
SECTION 11.11. Obligations Not Affected.....................................94
SECTION 11.12. Waiver.......................................................95
SECTION 11.13. No Obligation To Take Action Against the Company.............95
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SECTION 11.14. Dealing with the Company and Others..............................95
SECTION 11.15. Default and Enforcement..........................................96
SECTION 11.16. Amendment, Etc...................................................96
SECTION 11.17. Acknowledgment...................................................96
SECTION 11.18. Costs and Expenses...............................................96
SECTION 11.19. No Merger or Waiver; Cumulative Remedies.........................97
SECTION 11.20. Survival of Obligations..........................................97
SECTION 11.21. Guarantee in Addition to Other Obligations.......................97
SECTION 11.22. Severability.....................................................97
SECTION 11.23. Successors and Assigns...........................................97
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE............................................................98
SECTION 12.01. Obligations of Guarantors Subordinated
to Guarantor Senior Indebtedness.................................98
SECTION 12.02. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness is in Default......................98
SECTION 12.03. Guarantee Obligations Subordinated to Prior
Payment of All Guarantor Senior Indebtedness
on Dissolution, Liquidation or Reorganization
of Such Subsidiary Guarantor.....................................99
SECTION 12.04. Holders of Guarantee Obligations To
Be Subrogated to Rights of Holders
of Guarantor Senior Indebtedness. ..............................101
SECTION 12.05. Obligations of the Subsidiary Guarantors Uncondition............102
SECTION 12.06. Trustee Entitled To Assume Payments
Not Prohibited in Absence of Notice.............................103
SECTION 12.07. Application by Trustee of Assets Deposited with It..............103
SECTION 12.08. No Waiver of Subordination Provisions...........................103
SECTION 12.09. Holders Authorize Trustee To Effectuate
Subordination of Guarantee Obligations..........................104
SECTION 12.10. Right of Trustee to Hold
Guarantor Senior Indebtedness...................................105
SECTION 12.11. No Suspension of Remedies.......................................105
SECTION 12.12. No Fiduciary Duty of Trustee to Holders of Guarantor
Senior Indebtedness.............................................105
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ARTICLE THIRTEEN
MISCELLANEOUS..............................................................106
SECTION 13.01. TIA Controls.........................................106
SECTION 13.02. Notices..............................................106
SECTION 13.03. Communications by Holders with Other Holders.........107
SECTION 13.04. Certificate and Opinion as to Conditions Precedent...107
SECTION 13.05. Statements Required in Certificate or Opinion........107
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar............108
SECTION 13.07. Legal Holidays.......................................108
SECTION 13.08. Governing Law........................................108
SECTION 13.09. No Adverse Interpretation of Other Agreements........108
SECTION 13.10. No Personal Liability................................109
SECTION 13.11. Successors...........................................109
SECTION 13.12. Duplicate Originals..................................109
SECTION 13.13. Severability.........................................109
SIGNATURES ....................................................................109
EXHIBIT A Form of Series A Note................................................A-1
EXHIBIT B Form of Series B Note................................................B-1
EXHIBIT C Form of Legend for Global Note.......................................C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors.......................D-1
EXHIBIT E Form of Certificate to Be Delivered in Connection
with Transfers Pursuant To Regulation S..............................E-1
EXHIBIT F Form of Guarantee....................................................F-1
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INDENTURE, dated as of May 27, 1998, among General Binding
Corporation, a Delaware corporation (the "Company"), each of the Subsidiary
Guarantors named herein, as guarantors, and First Union National Bank, as
Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 93/8%
Senior Subordinated Notes due 2008 and 93/8% Senior Subordinated Notes due 2008
to be issued in exchange therefor pursuant to a registration rights agreement
and, to provide therefor, the Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make the 93/8% Senior
Subordinated Notes due 2008, when duly issued and executed by the Company and
authenticated and delivered hereunder, the valid and binding obligations of the
Company and to make this Indenture a valid and binding agreement of the Company,
have been done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" of a Person means Indebtedness of another
Person or any of its Subsidiaries existing at the time such other Person becomes
a Restricted Subsidiary of the referent Person or at the time it merges or
consolidates with the referent Person or any of the referent Person's Restricted
Subsidiaries or is assumed by the referent Person or any Restricted Subsidiary
of the referent Person in connection with the acquisition of assets from such
other Person and in each case not incurred by such other Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the referent Person or such acquisition, merger or consolidation.
"Additional Interest" shall have the meaning set forth in the
Registration Rights Agreement or, with respect to Initial Notes issued under
this Indenture subsequent to the Issue Date pursuant to Section 2.02, the
applicable registration rights agreement.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls or
is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise
(and the terms "controlling" and "controlled" have meanings correlative of the
foregoing).
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"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.16.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprises any division or line of business
of such Person, or any other properties or assets of such Persons other than in
the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly-Owned Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted Subsidiary
of the Company; or (b) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that Asset Sale shall not include (i) transactions
(taken collectively) for which the Company or its Restricted Subsidiaries
receive aggregate consideration of less than $15.0 million in any consecutive
12- month period, (ii) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
under Section 5.01, (iii) the sale, lease, conveyance, disposition or other
transfer by the Company or any Restricted Subsidiary of assets or property to
one or more Restricted Subsidiaries or Permitted Joint Ventures in connection
with Investments permitted under Section 4.10, (iv) sales of Receivables of the
type specified in the definition of "Qualified Securitization Transaction" to a
Securitization Entity for the Fair Market Value thereof, and (v) the sale of the
Company's ringbinder manufacturing business, including the assets of U.S.
RingBinder Corp., the interests in the Champion Stationery Manufacturing Company
Limited and the Sun Kwong Metal Manufacturer Company Limited joint ventures, and
the stock of GBC Metals Corp.
"Authenticating Agent" has the meaning provided in Section 2.02.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Blockage Period" has the meaning provided in Section 10.02.
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"Board of Directors" means the board of directors, advisory
committee, management committee or similar governing body or any authorized
committee thereof responsible for the management of the business and affairs of
any Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than a Saturday, Sunday or any
other day on which banking institutions in the city of New York or the Corporate
Trust Office of the Trustee are required or authorized by law or other
governmental action to be closed.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by (x) any State of the United States of
America or any political subdivision of any such State or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either the Standard & Poor's Rating Group Division of McGraw
Hill Incorporated ("S&P") or Moody's Investors Service, Inc. ("Moody's") or (y)
the sovereign debt of any foreign government maturing within six months from the
date of acquisition thereof and, at the time of acquisition having a rating of
at least A-1 from S&P or at least P-1 from Moody's (or equivalent long-term
ratings) (provided that the aggregate face amount of all Investments pursuant to
this clause (y) shall not at the time of each such new Investment exceed the
greater of $3,000,000 (or the local currency equivalent thereof) or 10% of all
Investments described in this definition); (iii) commercial paper maturing no
more than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody's or the equivalent long term rating by any other nationally recognized
rating agency; (iv) certificates of deposit, time deposits or bankers'
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acceptances maturing within one year from the date of acquisition thereof issued
by any bank organized under the laws of the United States of America, any State
thereof or the District of Columbia, any foreign branch of such a bank, any
foreign bank, or any U.S. or foreign branch of such a bank, in each case having
at the date of acquisition thereof combined capital and surplus of not less than
$250,000,000 (or the local currency equivalent thereof) and whose long-term
unsecured debt has a rating of A or better or A2 or better from S&P or Moody's,
respectively, or the equivalent rating by any other nationally recognized rating
agency; (v) repurchase obligations with a term of not more than one month for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above; (vi)
"Money Market" preferred stock maturing within six months after issuance
thereof; (vii) bonds or notes maturing within six months from the date of
acquisition thereof and at the time of acquisition having a rating of AA or
better or Aa or better from either S&P or Moody's, respectively, or the
equivalent rating by any other nationally recognized rating agency (provided
that the principal amount of bonds or notes issued by any one issuer shall not
at the time of each such new Investment exceed the greater of $3,000,000 or 10%
of all Investments described in this definition); and (viii) investments in
money market funds which invest substantially all their assets in securities of
the types described in clauses (i) through (vii) above.
"Cash Instruments" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any State of the United States of
America or any political subdivision of any such State or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's; (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; and (iv)
certificates of deposit, time deposits or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any bank organized under
the laws of the United States of America, any State thereof or the District of
Columbia, in each case having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange, transfer or other disposition
(in one transaction or a series of related transactions) of all or substantially
all of the assets of the Company and its Restricted Subsidiaries taken as a
whole to any Person or group of related Persons for purposes of Section 13(d) of
the Exchange Act (a "Group"), together with any Affiliates thereof (whether or
not otherwise in compliance with the provisions of this Indenture); (ii) the
approval by the holders of Capital Stock of the Company of any plan or proposal
for the liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture); (iii) any Person or Group
other than the Permitted Holders or a Group controlled by the Permitted Holders
shall
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become the owner, directly or indirectly, beneficially or of record, of shares
representing more than the aggregate ordinary voting power represented by the
Capital Stock of the Company owned, directly or indirectly, by the Permitted
Holders; (iv) the Permitted Holders shall own, directly or indirectly, less than
30.0% of the aggregate ordinary voting power of the Capital Stock of the Company
or the Permitted Holders shall cease to be able to elect a majority of the
members of the Board of Directors of the Company; or (v) the replacement of a
majority of the Board of Directors of the Company from the directors who
constituted the Board of Directors of the Company on the Issue Date, and such
replacement shall not have been approved by a vote of at least a majority of the
Board of Directors of the Company then still in office who either were members
of such Board of Directors on the Issue Date or whose election as a member of
such Board of Directors was previously so approved.
"Change of Control Offer" has the meaning provided in Section 4.14.
"Change of Control Payment Date" has the meaning provided in Section
4.14.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreements" means any commodity futures contracts,
commodity options or other similar agreements or arrangements designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in the prices of commodities actually at that time used in the
ordinary course of business of the Company or any Restricted Subsidiary of the
Company.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor and also includes for the purposes of any provision contained herein
and required by the TIA any other obligor on the Notes.
"Consolidated Cash Flow" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business), (B) Consolidated
Interest Expense and (C) Consolidated Non-cash Charges less any non-cash items
increasing Consolidated Net Income
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for such period, all as determined on a consolidated basis for such Person and
its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Consolidated Cash Flow of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the date
of the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for such Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated Cash Flow" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period and (ii) any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness and also including any
Consolidated Cash Flow (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Securities Act as
in effect on the Issue Date) (provided that such Consolidated Cash Flow shall be
included only to the extent includable pursuant to the definition of
"Consolidated Net Income") attributable to the assets which are the subject of
the Asset Acquisition or Asset Sale during the Four Quarter Period) occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such Asset
Sale or Asset Acquisition (including the incurrence, assumption or liability for
any such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period. If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a Person other than the Company or a
Restricted Subsidiary of the Company, the preceding sentence shall give effect
to the incurrence of such guaranteed Indebtedness as if such Person or any
Restricted Subsidiary of such Person had directly incurred or otherwise assumed
such guaranteed Indebtedness. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the numerator) of
this "Consolidated Fixed Charge Coverage Ratio," (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an
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interest rate based upon a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Four Quarter
Period; and (3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Swap Obligations, shall be deemed to accrue at
the rate per annum resulting after giving effect to the operation of such
agreements.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Interest Expense,
plus (ii) the product of (x) the amount of all dividend payments on any series
of Preferred Stock of such Person and its Restricted Subsidiaries (other than
dividends paid in Qualified Capital Stock and other than dividends paid to such
Person or a Restricted Subsidiary of such Person) paid, accrued or scheduled to
be paid or accrued during such period times (y) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum, without duplication of: (i) the aggregate of the
interest expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including without
limitation, (a) any amortization of debt discount, (b) the net cost (which may
be positive or negative) under Interest Swap Obligations, (c) all capitalized
interest and (d) the interest portion of any deferred payment obligation; and
(ii) the interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP; provided, that Consolidated Interest Expense with respect
to any Person for any period shall not include any amortization or write off of
deferred financing costs.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided, however, that there shall be excluded therefrom (a) gains
(and losses) on an after-tax basis from asset sales or abandonments or reserves
relating thereto, (b) items classified as extraordinary or nonrecurring gains or
losses on an after-tax basis, (c) the net income or loss of any Person acquired
in a "pooling of interests" transaction accrued prior to the date it becomes a
Restricted Subsidiary of the referent Person or is merged or consolidated with
the referent Person or any Restricted Subsidiary of the referent Person, (d) the
net income (but not the loss for such period) of any Restricted Subsidiary of
the referent Person which is not a Subsidiary Guarantor to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
to the referent Person or any Subsidiary thereof of that income is restricted,
directly or indirectly, by operation of the terms of its charter or constituent
documents or any agreement, instrument, judgment or decree, (e) the net income
(but not the loss for such period) of any Restricted Subsidiary of the referent
Person which is a
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Subsidiary Guarantor to the extent that the payments of amounts under the
Guarantee by that Restricted Subsidiary is restricted, directly or indirectly,
by operation of the terms of its charter or constituent documents or any
agreement, instrument, judgment, decree, law, order, statute, rule, governmental
regulation or for any other reason whatsoever, (f) the net income or loss of any
other Person, other than a Restricted Subsidiary of the referent Person, except
to the extent (in the case of net income) of cash dividends or distributions
paid to the referent Person, or to a Wholly-Owned Restricted Subsidiary of the
referent Person, by such other Person, (g) any restoration to income of any
contingency reserve of an extraordinary, nonrecurring or unusual nature, except
to the extent that provision for such reserve was made out of Consolidated Net
Income accrued at any time following the Issue Date, (h) income or loss
attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued), and (i) in the case of a successor to the referent
Person by consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any Person,
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Restricted Subsidiaries reducing Consolidated
Net Income of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
charge which requires an accrual of or a reserve for cash charges for any future
period).
"consolidation" means, with respect to any Person, the consolidation
of the accounts of the Subsidiaries of such Person with those of such Person,
all in accordance with GAAP; provided, however, that "consolidation" will not
include consolidation of the accounts of any Subsidiary of such Person with the
accounts of such Person. The term "consolidated" has a correlative meaning to
the foregoing.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 230 S. Tryon St., Charlotte, North Carolina 28288-1179, Attention:
Corporate Trust Department - 9th Floor.
"Covenant Defeasance" has the meaning set forth in Section 8.01.
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"Credit Agreement" means the Multicurrency Credit Agreement dated as
of January 13, 1997, as amended, among the Company, each of the guarantors party
thereto, the lenders party thereto in their capacities as lenders thereunder and
Harris Trust & Savings Bank, as administrative agent, together with the related
documents thereto (including, without limitation, any guarantee agreements), in
each case as such agreements may be further amended (including any amendment and
restatement thereof), supplemented or otherwise modified or replaced from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (provided, however, that such increase in
borrowings is permitted by Section 4.12 of this Indenture) or adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Defeasance Payment" means any distribution from any defeasance
trust described under Section 8.01.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Designated Senior Indebtedness" means (i) Indebtedness under or in
respect of the Credit Agreement and (ii) any other Indebtedness constituting
Senior Indebtedness or Guarantor Senior Indebtedness which, at the time of
determination, has an aggregate principal amount of at least $10.0 million and
is specifically designated in the instrument evidencing such Senior Indebtedness
or Guarantor Senior Indebtedness as "Designated Senior Indebtedness" by the
Company or the applicable Subsidiary Guarantor, as the case may be.
"Disqualified Capital Stock" means that portion of any Capital Stock
that, by its term (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the stated maturity of the Notes.
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"Domestic Restricted Subsidiary" of any Person means any Domestic
Subsidiary that is also a Restricted Subsidiary of such Person.
"Domestic Subsidiary" means any Subsidiary of the Company that is
organized under the laws of any State of the United States, the District of
Columbia or any territory or possession of the United States.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the 93/8% Senior Subordinated Notes due 2008
of the Company to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement or, with respect to Initial Notes issued under
this Indenture subsequent to the Issue Date pursuant to Section 2.02, a
registration rights agreement substantially identical to the Registration Rights
Agreement.
"Exchange Offer" has the meaning provided in the Registration Rights
Agreement.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair Market Value
shall be determined by the Board of Directors of the Company acting in good
faith and shall be evidenced by a Board Resolution of the Board of Directors of
the Company.
"Foreign Restricted Subsidiary" of any Person means any Foreign
Subsidiary that is also a Restricted Subsidiary of such Person.
"Foreign Subsidiary" means any Subsidiary of the Company other than
a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect on the Issue
Date.
"Global Note" has the meaning provided in Section 2.01.
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"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
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 by virtue
of partnership arrangements, or by agreement to keep-well, 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) (but if in part, only to the extent thereof); provided,
however, that the term "guarantee" shall not include (A) endorsements for
collection or deposit in the ordinary course of business and (B) guarantees
(other than guarantees of Indebtedness) by the Company in respect of assisting
one or more Subsidiaries in the ordinary course of their respective businesses,
including without limitation guarantees of trade obligations and operating
leases, on ordinary business terms. The term "guarantee" used as a verb has a
corresponding meaning.
"Guarantees" means the guarantees of the Notes by the Subsidiary
Guarantors.
"Guarantor Senior Indebtedness" means, with respect to any
Subsidiary Guarantor, the principal of, premium, if any, and interest (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on any Indebtedness of
such Subsidiary Guarantor, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument or agreement creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Guarantee of such
Subsidiary Guarantor. Without limiting the generality of the foregoing,
"Guarantor Senior Indebtedness" shall also include the principal of, premium, if
any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, (x) all monetary
obligations of every nature of a Subsidiary Guarantor under the Credit
Agreement, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations and (z) all obligations under
Currency Agreements and Commodity Agreements, in each case whether outstanding
on the Issue Date or thereafter incurred. Notwithstanding the foregoing,
"Guarantor Senior Indebtedness" shall not include (i) any Indebtedness of such
Subsidiary Guarantor to a Subsidiary of such Subsidiary Guarantor or any
Affiliate of such Subsidiary Guarantor or any of such Affiliate's Subsidiaries,
(ii) Indebtedness to, or guaranteed on behalf of, any shareholder, director,
officer or employee of the Company or any Subsidiary of the Company (including,
without limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining
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goods, materials or services, (iv) Indebtedness represented by Disqualified
Capital Stock, (v) any liability for federal, state, local or other taxes owed
or owing by a Subsidiary Guarantor, (vi) Indebtedness incurred in violation of
the provisions set forth in Section 4.12, (vii) Indebtedness which, when
incurred and without respect to any election under Section 1111 (b) of Title 11,
United States Code is without recourse to such Subsidiary Guarantor and (viii)
any Indebtedness which is, by its express terms, subordinated in right of
payment to any other Indebtedness of a Subsidiary Guarantor.
"Holder" means any holder of Notes.
"IAI Global Note" means a permanent global note in registered form
representing the aggregate principal amount of Notes sold to Institutional
Accredited Investors.
"incur" has the meaning set forth in Section 4.12.
"Indebtedness" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all Obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business that are not
overdue by 90 days or more or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted), (v) all Obligations
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, except to the extent secured by Cash
and Cash Equivalents, (vi) guarantees and other contingent obligations in
respect of Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below, (vii) all Obligations of any other Person of the type referred to
in clauses (i) through (vi) above which are secured by any lien on any property
or asset of such Person, the amount of such Obligation being deemed to be the
lesser of the Fair Market Value of such property or asset or the amount of the
Obligation so secured, (viii) all Obligations under Currency Agreements,
Commodity Agreements and Interest Swap Agreements of such Person (whether or not
entered into for the purpose of protecting the Company or any Restricted
Subsidiary of the Company from fluctuations in currency or commodity values or
interest rates) and (ix) all Disqualified Capital Stock issued by such Person
with the amount of Indebtedness represented by such Disqualified Capital Stock
being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any. For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the Fair Market Value of such
Disqualified Capital
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Stock, such Fair Market Value shall be determined in good faith by the Board of
Directors of the issuer of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Notes" means, collectively, (i) the 93/8% Senior
Subordinated Notes due 2008 of the Company issued on the Issue Date and (ii) one
or more series of 93/8% Senior Subordinated Notes due 2008 that are isssued
under this Indenture subsequent to the Issue Date pursuant to Section 2.02, in
each case for so long as such securities constitute Restricted Securities.
"Initial Purchasers" means BT Alex. Brown Incorporated, CIBC
Oppenheimer Corp., ABN AMRO Incorporated, First Chicago Capital Markets, Inc.
and Nesbitt Burns Securities Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, when used with respect to any Note, the amount of
all interest accruing on such Note, including any applicable defaulted interest
pursuant to Section 2.12 and any Additional Interest.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Swap Agreements" means any interest rate swap agreement,
interest rate cap agreement, interest rate floor agreement, interest rate collar
agreement, treasury rate-lock agreement or other similar agreement or
arrangement designed to protect the Company or any Restricted Subsidiary of the
Company from fluctuations in interest rates.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any Interest Swap Agreement with any other Person.
"Internal Revenue Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder, as amended, or any successor statute or
statutes thereto.
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"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) 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 by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit by
the Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. For the purposes of Section 4.10, the amount of
any Investment shall be the original cost of such Investment plus the cost of
all additional Investments by the Company or any of its Restricted Subsidiaries,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or writeoffs with respect to such Investment, reduced by the payment
of dividends or distributions in connection with such Investment or any other
amounts received in respect of such Investment; provided, however, that no such
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, greater than
50% of the outstanding Common Stock of such Restricted Subsidiary, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Common Stock of such former
Restricted Subsidiary not sold or disposed of.
"Issue Date" means May 27, 1998, the date of original issuance of
the Notes.
"Legal Defeasance" has the meaning set forth in Section 8.01.
"Legal Holiday" has the meaning provided in Section 13.07.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Maturity Date" means June 1, 2008.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales
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commissions), (b) taxes reasonably estimated to be paid or payable after taking
into account any reduction in consolidated tax liability due to available tax
credits or deductions and any tax sharing arrangements, to the extent the
Company elects to apply such credits or deductions thereto, (c) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale
and (d) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Net Proceeds Offer" has the meaning set forth in Section 4.15.
"Net Proceeds Offer Amount" has the meaning set forth in Section
4.15.
"Net Proceeds Offer Payment Date" has the meaning set forth in
Section 4.15.
"Net Proceeds Offer Trigger Date" has the meaning set forth in
Section 4.15.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means, collectively, the Initial Notes, the Exchange Notes,
the Private Exchange Notes, if any, and the Unrestricted Notes, treated as a
single class of securities, as amended or supplemented from time to time in
accordance with the terms of this Indenture, that are issued pursuant to this
Indenture.
"Obligations" means, when used with reference to any Indebtedness,
all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation evidencing or governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Controller, or the
Secretary of such Person, or any other officer designated by the Board of
Directors serving in a similar capacity and with respect to the Trustee or any
agent of the Trustee, a Trust Officer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, Chief Executive Officer, the President or
any Vice President and the Chief Financial Officer, Controller or the Treasurer
of such Person that shall comply with applicable provisions of this Indenture.
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"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 13.04 and 13.05, as they relate to the giving of an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Holders" means William N. Lane II, his children or other
lineal descendants (whether adoptive or biological), probate estate of any such
individual, and any trust, so long as one or more of the foregoing individuals
is, directly or indirectly, the beneficiary thereunder, and any other
corporation, partnership or other entity, all of the shareholders, partners,
members or owners of which are, directly or indirectly, any of the foregoing.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Notes issued on the Issue Date and the
Guarantees outstanding on the Issue Date or entered into thereafter in
accordance with this Indenture;
(ii) Indebtedness of the Company or any of its Restricted
Subsidiaries which are Subsidiary Guarantors incurred pursuant to the Credit
Agreement in an aggregate principal amount at any time outstanding not to exceed
$550.0 million in the aggregate reduced by any required permanent repayments
pursuant to Section 4.15 (which are accompanied by a corresponding permanent
commitment reduction) thereunder (it being recognized that a reduction in any
borrowing base in and of itself shall not be deemed a required permanent
repayment);
(iii) Interest Swap Obligations of the Company or any of its
Restricted Subsidiaries which are Subsidiary Guarantors covering Indebtedness of
the Company or any of its Restricted Subsidiaries; provided, however, that such
Interest Swap Obligations are entered into to protect the Company and its
Restricted Subsidiaries from fluctuations in interest rates on Indebtedness
incurred in accordance with this Indenture and the notional principal amount of
any such Interest Swap Obligation does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligation relates;
(iv) Indebtedness of the Company or any of its Restricted
Subsidiaries which are Subsidiary Guarantors under Currency Agreements and
Commodity Agreements; provided, however, that such Currency Agreements and
Commodity Agreements do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of fluctuations in
foreign currency exchange rates or commodity prices, as the case may be, or by
reason of fees, indemnities and compensation payable thereunder;
(v) Indebtedness of a Restricted Subsidiary to the Company or to a
Wholly-Owned Restricted Subsidiary of the Company for so long as such
Indebtedness is held by the Company or
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a Wholly-Owned Restricted Subsidiary of the Company, in each case subject to no
Liens held by any Person other than the Company or a Wholly-Owned Restricted
Subsidiary of the Company; provided, however, that if as of any date any Person
other than the Company or a Wholly-Owned Restricted Subsidiary of the Company
owns or holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness by the issuer of such Indebtedness;
(vi) Indebtedness of the Company to a Restricted Subsidiary of the
Company which is a Subsidiary Guarantor for so long as such Indebtedness is held
by a Restricted Subsidiary of the Company which is a Subsidiary Guarantor,
provided, however, that (a) any Indebtedness of the Company to any Restricted
Subsidiary of the Company which is a Subsidiary Guarantor is unsecured and
subordinated, pursuant to a written agreement, to the Company's obligations
under this Indenture and the Notes and (b) if as of any date any Person other
than a Restricted Subsidiary which is a Subsidiary Guarantor of the Company owns
or holds any such Indebtedness or a Lien in respect of such Indebtedness, such
date shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the Company;
(vii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within three business days of
incurrence;
(viii) Indebtedness of the Company or any of its Restricted
Subsidiaries which are Subsidiary Guarantors represented by letters of credit
for the account of the Company or such Restricted Subsidiary, as the case may
be, in order to provide security for workers' compensation claims, payment
obligations in connection with self-insurance or other requirements in the
ordinary course of business;
(ix) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of the Company or any of its Restricted Subsidiaries
which are Subsidiary Guarantors or otherwise incurred to finance the lease or
improvement of real or personal property or equipment in an aggregate principal
amount not to exceed $10.0 million at any one time outstanding;
(x) Indebtedness permitted by clause (x) of the definition of
"Permitted Investments";
(xi) Indebtedness of Foreign Restricted Subsidiaries to the extent
that the aggregate outstanding amount of Indebtedness incurred by all Foreign
Restricted Subsidiaries to Persons other than Foreign Restricted Subsidiaries
under this clause (xi) does not exceed at any one time the greater of (I) an
amount equal to the sum of (A) 80% of the consolidated book value of the
accounts receivable of all Foreign Restricted Subsidiaries and (B) 60% of the
consolidated book value of the inventory of all Foreign Restricted Subsidiaries
and (II) 2.25 multiplied by the
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Consolidated Net Worth of all Foreign Restricted Subsidiaries; provided,
however, that for purposes of calculating Consolidated Net Worth for this clause
(xi), Indebtedness owing to the Company or any of its Restricted Subsidiaries
which are Subsidiary Guarantors shall be deemed a component of consolidated
stockholders' equity; and, provided, further, that at the date of the incurrence
of any such Indebtedness under this clause (xi), the Company is able to incur at
least $1.0 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12;
(xii) additional Indebtedness of the Company or any of its
Restricted Subsidiaries in an aggregate principal amount not to exceed $25.0
million at any one time outstanding;
(xiii) Indebtedness of the Company or any of its Restricted
Subsidiaries which are Subsidiary Guarantors constituting commercial paper
programs, money-market facilities, medium-term note programs or comparable
Indebtedness; provided, that the aggregate amount of Indebtedness permitted to
be outstanding under this clause (xiii) at any time should not, when added to
the principal amount of Indebtedness then outstanding under clause (ii) hereof,
exceed the aggregate amount of Indebtedness then permitted under clause (ii)
hereof;
(xiv) the incurrence by a Securitization Entity of Indebtedness of
a Qualified Securitization Transaction that is not recourse to the Company or
any Restricted Subsidiary of the Company (except for Standard Securitization
Undertakings); and
(xv) Refinancing Indebtedness.
"Permitted Investments" means (i) Investments by the Company or any
Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Restricted Subsidiary of the Company, or
that will merge or consolidate into the Company or a Restricted Subsidiary of
the Company; (ii) Investments in the Company by any Restricted Subsidiary of the
Company; provided, however, that any Indebtedness evidencing such Investment by
a Restricted Subsidiary is unsecured and subordinated, pursuant to a written
agreement, to the Company's obligations under the Notes and this Indenture;
(iii) Investments in cash and Cash Equivalents; (iv) loans to employees and
officers of the Company and its Subsidiaries made in connection with such
employees' and officers' participation in stock purchase plans or similar
arrangements of the Company, and other loans and advances to employees and
officers of the Company and its Subsidiaries in the ordinary course of business
for bona fide business purposes not to exceed $3.0 million in the aggregate at
any one time outstanding; (v) Currency Agreements, Commodity Agreements and
Interest Swap Obligations entered into in the ordinary course of the Company's
or its Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture; (vi) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers; (vii) Investments
made by the
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Company or its Restricted Subsidiaries as a result of non-cash consideration
received in connection with an Asset Sale made in compliance with Section 4.15;
(viii) Investments in Permitted Joint Ventures; (ix) any Investment by the
Company or a Restricted Subsidiary of the Company in a Securitization Entity or
any Investment by a Securitization Entity in any other Person in connection with
a Qualified Securitization Transaction; and (x) additional Investments in an
amount outstanding at any one time not to exceed $20.0 million.
"Permitted Joint Venture" means any joint venture arrangement (which
may be structured as a corporation, partnership, trust, limited liability
company or any other Person) if (a) such Person is engaged in the same or a
similar line of business as the Company and its Restricted Subsidiaries were
engaged in on the Issue Date or any business ancillary or related or
complementary thereto or supportive thereof (as determined in good faith by the
Company's Board of Directors), (b) the Company and/or any of its Restricted
Subsidiaries at all times owns at least 25% of the total outstanding shares of
Capital Stock of such Person entitled to participate in distributions in respect
of the earnings, sale or liquidation of such Person but such Person does not
constitute a Subsidiary of the Company, (c) immediately after giving effect to
such Investment on a pro forma basis (to give effect to the contribution of any
property or assets to such Person or Indebtedness incurred to fund such
Investment or otherwise), the Company could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12, and
(d) no default with respect to any Indebtedness of such Person or any Subsidiary
of such Person having a principal amount in excess of $1.0 million (including
any right which the holders thereof may have to take enforcement action against
such Person) would permit (upon notice, lapse of time or both) any holder of any
Indebtedness of the Company or its Restricted Subsidiaries to declare a default
on such Indebtedness or cause the payment thereof to be accelerated or payable
prior to its final scheduled maturity.
"Permitted Liens" means the following types of Liens:
(i) Liens in favor of the Trustee in its capacity as trustee for
the Holders;
(ii) Liens securing Senior Indebtedness, including Senior
Indebtedness outstanding under the Credit Agreement;
(iii) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries shall
have set aside on its books such reserves as may be required pursuant to GAAP;
(iv) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
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appropriate provision, if any, as shall be required by GAAP shall have been made
in respect thereof;
(v) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return- of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money);
(vi) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceedings may be initiated
shall not have expired;
(vii) survey exceptions or encumbrances, easements, rights-of-way,
reservations, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
ordinary conduct of the business of the Company or any of its Subsidiaries;
(viii) any interest or title of a lessor under any Capitalized Lease
Obligation; provided, however, that such Liens do not extend to any property or
assets which is not leased property subject to such Capitalized Lease
Obligation;
(ix) Liens to secure Purchase Money Indebtedness of the Company or
any Restricted Subsidiary; provided, however, that (A) the related Purchase
Money Indebtedness is permitted to be incurred in accordance with Section 4.12,
(B) the related Purchase Money Indebtedness shall not exceed the cost of such
property or assets and shall not be secured by any property or assets of the
Company or any Restricted Subsidiary of the Company other than the property and
assets so acquired and (C) the Lien securing such Indebtedness shall be created
within 120 days of such acquisition;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements of the Company
or any of its Restricted Subsidiaries, including rights of offset and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens securing Indebtedness under Currency Agreements and
Commodity Agreements;
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(xiii) Liens securing Acquired Indebtedness incurred in accordance
with Section 4.12; provided, however, that (A) such Liens secured such Acquired
Indebtedness at the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company and were
not granted in connection with, or in anticipation of, the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company
and (B) such Liens do not extend to or cover any property or assets of the
Company or of any of its Restricted Subsidiaries other than the property or
assets that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a Restricted
Subsidiary of the Company and are no more favorable to the lienholders than
those securing the Acquired Indebtedness prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company;
(xiv) Liens securing Refinancing Indebtedness; provided that any
such Lien does not extend to or cover any property or assets other than the
property or assets securing the Indebtedness so refunded, refinanced or
extended;
(xv) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods in the ordinary
course of business;
(xvi) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(xvii) Liens granted in connection with any Qualified
Securitization Transaction; and
(xviii) Other Liens securing Obligations which do not exceed $10
million in the aggregate at any one time outstanding.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.01.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
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"principal" of any Indebtedness (including the Notes) means the
principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Exchange Notes" shall have the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend set forth on the Initial
Notes in the form set forth in the first paragraph on Exhibit A.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act.
"Public Equity Offering" means an underwritten offering of Qualified
Capital Stock of the Company pursuant to an effective registration statement
filed under the Securities Act.
"Purchase Money Indebtedness" means Indebtedness the net proceeds of
which are used to finance the cost (including the cost of construction) of
property or assets acquired in the normal course of business by the Person
incurring such Indebtedness.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A.
"Qualified Securitization Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Restricted Subsidiaries pursuant to which the Company or any of its Restricted
Subsidiaries may sell, convey or otherwise transfer pursuant to customary terms
to (a) a Securitization Entity (in the case of a transfer by the Company or any
of its Restricted Subsidiaries) and (b) any other Person (in the case of
transfer by a Securitization Entity), or may grant a security interest in any
Receivables (whether now existing or arising or acquired in the future) of the
Company or any of its Restricted Subsidiaries.
"Receivables" means any right to payment from or on behalf of any
obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the provision by the Company or any
Restricted Subsidiary of the Company of merchandise, goods or services or
otherwise evidencing the payment of a sum certain arising in the ordinary course
of business, and monies due thereunder, all security therefor, whether in such
merchandise, goods and services or otherwise, all guarantees, indemnities,
warranties, insurance policies and financing statements and other agreements
relating thereto, records related thereto, and the right to payment of any
interest or finance charges and other obligations with respect thereto, proceeds
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from claims on insurance policies related thereto, any other proceeds related
thereto, and any other related rights.
"Record Date" means the Record Dates specified in the Notes.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the price fixed for such redemption, including principal and premium,
if any, pursuant to this Indenture and the Notes.
"Reference Date" has the meaning set forth in Section 4.10.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or
any Restricted Subsidiary of the Company of Indebtedness incurred in accordance
with Section 4.12 (provided that Refinancing Indebtedness shall not include
Indebtedness described in clauses (ii) through (xiii) of the definition of
Permitted Indebtedness), in each case that does not (1) result in an increase in
the aggregate principal amount of Indebtedness of such Person as of the date of
such proposed Refinancing (plus the amount of any premium required to be paid
under the terms of the instrument governing such Indebtedness and plus the
amount of reasonable expenses incurred by the Company or such Restricted
Subsidiary, as the case may be, in connection with such Refinancing), except to
the extent that any such increase in Indebtedness is otherwise permitted by this
Indenture or (2) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided, however, that (y) if
such Indebtedness being Refinanced is solely Indebtedness of the Company, then
such Refinancing Indebtedness shall be Indebtedness solely of the Company and
(z) if such Indebtedness being Refinanced is subordinate or junior to the Notes
or the Guarantees, then such Refinancing Indebtedness shall be subordinate to
the Notes or the Guarantees, as the case may be, at least to the same extent and
in the same manner as the Indebtedness being Refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the Issue Date among the Company, the Subsidiary Guarantors and
the Initial Purchasers.
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"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Replacement Assets" shall have the meaning set forth in Section
4.15.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Indebtedness; provided,
however, that if, and for so long as, any Designated Senior Indebtedness lacks
such a representative, then the Representative for such Designated Senior
Indebtedness shall at all times constitute the holders of the greater of a
majority in outstanding principal amount of such Designated Senior Indebtedness
or the holders thereof generally necessary to take action or approve amendments
under the agreement governing such Designated Senior Indebtedness.
"Restricted Payment" shall have the meaning set forth in Section
4.10.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of the Company of any
property, whether owned by the Company or any Restricted Subsidiary of the
Company at the Issue Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person or to
any other Person from whom funds have been or are to be advanced by such Person
on the security of such property.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Securitization Entity" means a Restricted Subsidiary of the Company
(or another Person in which the Company or any Subsidiary of the Company makes
an Investment and to which the Company or any Subsidiary of the Company
transfers Receivables) which engages in no activities
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other than in connection with the financing of Receivables and which is
designated by the Board of Directors of the Company (as provided below) as a
Securitization Entity (a) no portion of the Indebtedness or any other
Obligations (contingent or otherwise) of which (i) is guaranteed by the Company
or any other Restricted Subsidiary of the Company (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or
obligates the Company or any Restricted Subsidiary of the Company (other than
the Securitization Entity) in any way other than pursuant to Standard
Securitization Undertakings or (iii) subjects any property or asset of the
Company or any Restricted Subsidiary of the Company (other than the
Securitization Entity), directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which neither the Company nor any Restricted Subsidiary
of the Company has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or such
Subsidiary than those that might be obtained at the time from Persons that are
not Affiliates of the Company, other than fees payable in the ordinary course of
business in connection with servicing Receivables of such entity and Standard
Securitization Undertakings and (c) to which neither the Company nor any
Restricted Subsidiary of the Company has any obligation to maintain or preserve
such entity's financial condition or cause such entity to achieve certain levels
of operating results. Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution of the Company giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"Senior Indebtedness" means, the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on, and all fees, indemnities, reimbursement obligations with respect to,
letters of credit and all other monetary obligations with respect to any
Indebtedness of the Company, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without limiting the generality
of the foregoing, "Senior Indebtedness" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, (x) all monetary
obligations of every nature of the Company under the Credit Agreement,
including, without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations and (z) all obligations under
Currency Agreements and Commodity Agreements, in each case whether outstanding
on the Issue Date or thereafter incurred. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (i) any Indebtedness of the Company to a
Subsidiary of the Company or any Affiliate of the
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Company or any of such Affiliate's Subsidiaries, (ii) Indebtedness to, or
guaranteed on behalf of, any shareholder, director, officer or employee of the
Company or any Subsidiary of the Company (including, without limitation, amounts
owed for compensation), (iii) Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services, (iv)
Indebtedness represented by Disqualified Capital Stock, (v) any liability for
federal, state, local or other taxes owed or owing by the Company, (vi)
Indebtedness incurred in violation of Section 4.12, (vii) Indebtedness which,
when incurred and without respect to any election under Section 1111 (b) of
Title 11, United States Code is without recourse to the Company and (viii) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of the Company.
"Significant Subsidiary" shall have the meaning set forth in Rule
1.02(w) of Regulation S-X under the Securities Act.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary of the Company which are reasonably customary in a
Receivables securitization transaction.
"Subsidiary", with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the outstanding voting interests
under ordinary circumstances is at the time, directly or indirectly, owned by
such Person.
"Subsidiary Guarantor" means (a) each of the Company's Domestic
Restricted Subsidiaries as of the Issue Date and (b) each of the Company's
Restricted Subsidiaries that in the future executes a supplemental indenture in
which such Subsidiary agrees to be bound by the terms of this Indenture as a
Subsidiary Guarantor; provided, however, that any Person constituting a
Subsidiary Guarantor as described above shall cease to constitute a Subsidiary
Guarantor when its Guarantee is released in accordance with the terms of this
Indenture.
"Surviving Entity" shall have the meaning set forth in Section 5.01.
"Tax Sharing Agreement" means the Tax Allocation Agreement dated as
of June 1, 1978 by and between Lane Industries and its subsidiaries and the
Company and its United States subsidiaries, as amended as of January 1, 1991,
and the State Tax Allocation Agreement dated as of May 31, 1985 by and between
Lane Industries and its subsidiaries and the Company and its United States
subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in Section 9.03.
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"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer in the Corporate Trust Office of
the Trustee, including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary, or any other officer of the
Trustee who customarily performs functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the Private Placement Legend in the form set forth in Exhibit
A.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated as an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided for in Section 4.17 and (ii) any Subsidiary of an
Unrestricted Subsidiary.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than director
qualifying shares or other de minimis third-party ownership interests required
by law) normally entitled to vote in the election of the Board of Directors are
owned by such Person or any Wholly-Owned Subsidiary of such Person.
"Wholly-Owned Restricted Subsidiary" of any Person means any
Wholly-Owned Subsidiary which is also a Restricted Subsidiary of such Person.
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SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. 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 on any date of
determination;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(6) any reference to a statute, law or regulation means that
statute, law or regulation as amended and in effect from
time to time and includes any successor statute, law or
regulation;
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provided, however, that any reference to the Bankruptcy Law shall mean the
Bankruptcy Law as applicable to the relevant case.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes, the notation thereon relating to the Guarantees
and the Trustee's certificate of authentication relating thereto shall be
substantially in the form of Exhibit A hereto. The Exchange Notes, the notation
thereon relating to the Guarantees and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of Exhibit B
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule or depository rule or usage. The Company shall approve the
form of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its issuance and shall show the date of its
authentication. Each Note shall have an executed Guarantee from each of the
Subsidiary Guarantors endorsed thereon substantially in the form of Exhibit F
hereto.
The terms and provisions contained in the Notes and the Guarantees
annexed hereto as Exhibits A, B and F shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A, Notes offered and
sold to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Notes in registered form, substantially in the form set forth in Exhibit
A (the "Global Note"), deposited with the Trustee, as custodian for the
Depository, duly executed by the Company (and having an executed Guarantee
endorsed thereon) and authenticated by the Trustee as hereinafter provided and
shall bear the legend set forth in Exhibit C. The aggregate principal amount of
the Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant to
Section 2.16 may be issued and Notes offered and sold in reliance on any other
exemption from registration under the Securities Act other than as described in
the preceding paragraph shall be issued in the form of
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permanent certificated Notes in registered form in substantially the form set
forth in Exhibit A (the "Physical Notes").
All Notes offered and sold in reliance on Regulation S shall remain
in the form of a Global Note until the consummation of the Exchange Offer
pursuant to the Registration Rights Agreement; provided, however, that all of
the time periods specified in the Registration Rights Agreement to be complied
with by the Company and the Subsidiary Guarantors have been so complied with.
SECTION 2.02. Execution and Authentication;
Aggregate Principal Amount.
Two Officers, or an Officer and an Assistant Secretary of the
Company, shall sign, or one Officer shall sign and one Officer or an Assistant
Secretary (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for the Company by
manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Note or
a Guarantee was an Officer or Assistant Secretary at the time of such execution
but no longer holds that office or position at the time the Trustee
authenticates the Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue
in the aggregate principal amount not to exceed $225,000,000 in one or more
series, (ii) Private Exchange Notes from time to time for issue only in exchange
for a like principal amount of Initial Notes and (iii) Unrestricted Notes from
time to time only (A) in exchange for a like principal amount of Initial Notes
or (B) in an aggregate principal amount of not more than the excess of
$225,000,000 over the sum of the aggregate principal amount of (x) Initial Notes
then outstanding, (y) Private Exchange Notes then outstanding and (z)
Unrestricted Notes issued in accordance with (iii)(A) above, in each case upon a
written order of the Company in the form of an Officers' Certificate of the
Company. Each such written order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated, whether
the Notes are to be Initial Notes, Private Exchange Notes or Unrestricted Notes
and whether the Notes are to be issued as Physical Notes or Global Notes or such
other information as the Trustee may reasonably request. The aggregate principal
amount of Notes outstanding at any time may not exceed $225,000,000, except as
provided in Sections 2.07 and 2.08.
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In the event that the Company shall issue and the Trustee shall
authenticate any Notes issued under this Indenture subsequent to the Issue Date
pursuant to clauses (i) and (iii) of the first sentence of the immediately
preceding paragraph, the Company shall use its reasonable efforts to obtain the
same "CUSIP" number for such Notes as is printed on the Notes outstanding at
such time; provided, however, that if any series of Notes issued under this
Indenture subsequent to the Issue Date is determined, pursuant to an Opinion of
Counsel of the Company in a form reasonably satisfactory to the Trustee, to be a
different class of security than the Notes outstanding at such time for federal
income tax purposes, the Company may obtain a "CUSIP" number for such Notes that
is different than the "CUSIP" number printed on the Notes then outstanding.
Notwithstanding the foregoing, all Notes issued under this Indenture shall vote
and consent together on all matters (as to which any of such Notes may vote or
consent) as one class and no series of Notes will have the right to vote or
consent as a separate class on any matter.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company or with any Affiliate of the Company.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York)
where (a) Notes may be presented or surrendered for registration of transfer or
for exchange ("Registrar"), (b) Notes may be presented or surrendered for
payment ("Paying Agent") and (c) notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Registrar shall keep
a register of the Notes and of their transfer and exchange. The Company may have
one or more co-Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any additional
Paying Agent. The Company may act as its own Paying Agent, except that for the
purposes of payments on the Notes pursuant to Sections 4.14 and 4.15, neither
the Company nor any Affiliate of the Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions 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 shall fail to maintain a Registrar or Paying
Agent the Trustee shall act as such.
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The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of demands and notices in connection with the Notes,
until such time as the Trustee has resigned or a successor has been appointed.
Any of the Registrar, the Paying Agent or any other agent may resign upon 30
days' notice to the Company.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest on, the Notes (whether
such assets have been distributed to it by the Company or any other obligor on
the Notes), and the Company and the Paying Agent shall notify the Trustee of any
Default by the Company (or any other obligor on the Notes) in making any such
payment. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent shall have no further liability
for such assets.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish or cause the Registrar to
furnish to the Trustee within five (5) Business Days after each Record Date and
at such other times as the Trustee may request in writing a list as of such date
and in such form as the Trustee may reasonably require of the names and
addresses of the Holders, which list may be conclusively relied upon by the
Trustee, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar or a co- Registrar with a request to register the transfer of such
Notes or to exchange such Notes for an equal principal amount of Notes or other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Notes presented or surrendered
for registration of transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to the Company, the
Trustee and the Registrar or co-Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing. To permit registration of
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transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Notes and the Subsidiary Guarantors shall execute Guarantees
thereon at the Registrar's or co-Registrar's request. No service charge shall be
made for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax, fee or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.10, 3.04, 4.14, 4.15 or 9.05, in which event the
Company shall be responsible for the payment of such taxes).
The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Note being redeemed in part.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book
entry system.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note and
the Subsidiary Guarantors shall execute a Guarantee thereon if the Trustee's
requirements are met. If required by the Trustee or the Company, such Holder
must provide an indemnity bond or other indemnity of reasonable tenor,
sufficient in the reasonable judgment of the Company, the Subsidiary Guarantors
and the Trustee, to protect the Company, the Subsidiary Guarantors, the Trustee
or any Agent from any loss which any of them may suffer if a Note is replaced.
Every replacement Note shall constitute an additional obligation of the Company
and the Subsidiary Guarantors.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be outstanding
because the Company or any of its Affiliates holds the Note.
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If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal, premium, if any, and interest due on the Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date such Notes shall be
deemed not to be outstanding and interest on them shall cease to accrue.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver, consent or notice, Notes owned
by the Company or an Affiliate of the Company shall be considered as though they
are not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes which a Trust Officer of the Trustee actually knows are so owned
shall be so considered. The Company shall notify the Trustee, in writing, when
either it or, to its knowledge, any of its Affiliates repurchases or otherwise
acquires Notes, of the aggregate principal amount of such Notes so repurchased
or otherwise acquired and such other information as the Trustee may reasonably
request and the Trustee shall be entitled to rely thereon.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes and
so indicates in the Officers' Certificate. Without unreasonable delay, the
Company shall prepare, the Trustee shall authenticate and the Subsidiary
Guarantors shall execute Guarantees on, upon receipt of a written order of the
Company pursuant to Section 2.02, definitive Notes in exchange for temporary
Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or
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the Paying Agent, and no one else, shall cancel and, at the written direction of
the Company, shall dispose, in its customary manner, of all Notes surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that they have paid or
delivered to the Trustee for cancellation. If the Company shall acquire any of
the Notes, such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
The Company will pay interest on overdue principal from time to time
on demand at the rate of interest then borne by the Notes. The Company shall, to
the extent lawful, pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
of interest then borne by the Notes. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months, and, in the case of a partial
month, the actual number of days elapsed.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which special record date shall be the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business Day.
The Company shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Note and the date of the proposed payment
(a "Default Interest Payment Date"), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such defaulted interest as provided in
this Section; provided, however, that in no event shall the Company deposit
monies proposed to be paid in respect of defaulted interest later than 11:00
a.m. New York City time of the proposed Default Interest Payment Date. At least
15 days before the subsequent special record date, the Company shall mail (or
cause to be mailed) to each Holder, as of a recent date selected by the Company,
with a copy to the Trustee, a notice that states the subsequent special record
date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid. Notwithstanding the
foregoing, any interest which is paid prior to the expiration of the 30-day
period set forth in Section 6.01(i) shall be paid to Holders as of the regular
record date for the Interest Payment Date for which interest has not been paid.
Notwithstanding the foregoing, the Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange.
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SECTION 2.13. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and, if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided, however, that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes, and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. Deposit of Monies.
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date, Change of Control Payment Date and Net
Proceeds Offer Payment Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date and Net Proceeds Offer Payment Date, as the case may be,
in a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Net Proceeds Offer Payment Date, as the case may be.
SECTION 2.15. Restrictive Legends.
Each Global Note and Physical Note that constitutes a Restricted
Security shall bear the Private Placement Legend on the face thereof until after
the second anniversary of the later of the Issue Date and the last date on which
the Company or any Affiliate of the Company was the owner of such Note (or any
predecessor security) (or such shorter period of time as permitted by Rule
144(k) under the Securities Act or any successor provision thereunder) (or such
longer period of time as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Company, unless
otherwise agreed by the Company and the Holder thereof).
Each Global Note shall also bear the legend as set forth in Exhibit
C.
SECTION 2.16. Book-Entry Provisions for Global Security.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear the legend as set forth
in Exhibit C.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or
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the Trustee as its custodian, or under the Global Notes, and the Depository may
be treated by the Company, the Trustee and any Agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any Agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of a Global Note shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in a Global Note may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Note if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for the Global Notes and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue Physical
Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b), the Registrar shall (if one or more Physical Notes are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute,
the Subsidiary Guarantors shall execute Guarantees on, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b) of this Section 2.16, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, the Subsidiary Guarantors shall execute Guarantees on and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depository in exchange for its beneficial interest in the Global Note, an
equal aggregate principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) or (c) of
this Section 2.16 shall, except as otherwise provided by paragraphs (a)(i)(x)
and (d) of Section 2.17, bear the Private Placement Legend.
(f) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
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SECTION 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non- U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the Private
Placement Legend, if (x) the requested transfer is after the second anniversary
of the Issue Date (provided, however, that neither the Company nor any Affiliate
of the Company has held any beneficial interest in such Note, or portion
thereof, at any time on or prior to the second anniversary of the Issue Date) or
(y) (1) in the case of a transfer to an Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons), the proposed transferee has delivered
to the Registrar a certificate substantially in the form of Exhibit D hereto or
(2) in the case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of Exhibit E
hereto; and
(ii) if the proposed transferee is an Agent Member and the
Notes to be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the IAI Global Note or Regulation S Global Note, as
the case may be, upon receipt by the Registrar of (x) written instructions given
in accordance with the Depository's and the Registrar's procedures and (y) the
appropriate certificate, if any, required by clause (y) of paragraph (i) above,
the Registrar shall register the transfer and reflect on its books and records
the date and an increase in the principal amount of the IAI Global Note or
Regulation S Global Note, as to case may be, in an amount equal to the principal
amount of Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of (x)
written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate certificate, if any, required by
clause (y) of paragraph (i) above, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the principal
amount of the Global Note from which such interests are to be transferred in an
amount equal to the principal amount of the Notes to be transferred and (B) an
increase in the principal amount of the IAI Global Note or the Regulation S
Global Note, as the case may be, in an amount equal to the principal amount of
the Notes to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
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(i) the Registrar shall register the transfer of any
Restricted Security if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Note stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has otherwise advised
the Company and the Registrar in writing, that it is purchasing the Note for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in a Global Note, upon receipt by the Registrar of
written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of such Global Note in an amount
equal to the principal amount of the Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in the IAI Global Note or the Regulation S Global Note,
upon receipt by the Registrar of written instructions given in accordance with
the Depository's and the Registrar's procedures, the Registrar shall register
the transfer and reflect on its books and records the date and (A) a decrease in
the principal amount of the IAI Global Note or the Regulation S Global Note, as
the case may be, in an amount equal to the principal amount of the Notes to be
transferred and (B) an increase in the principal amount of the Global Note in an
amount equal to the principal amount of the Notes to be transferred.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the requested transfer is after the second anniversary of the Issue
Date (provided, however, that neither the Company nor any Affiliate of the
Company has held any
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beneficial interest in such Note, or portion thereof, at any time prior to or on
the second anniversary of the Issue Date), 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.
(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.16 or this Section 2.17.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time during the
Registrar's normal business hours upon the giving of reasonable written notice
to the Registrar.
(f) Transfers of Notes Held by Affiliates. Any certificate (i)
evidencing a Note that has been transferred to an Affiliate of the Company
within two years after the Issue Date, as evidenced by a notation on the
Assignment Form for such transfer or in the representation letter delivered in
respect thereof or (ii) evidencing a Note that has been acquired from an
Affiliate of the Company (other than by an Affiliate) in a transaction or a
chain of transactions not involving any public offering, shall, until two years
after the last date on which the Company or any Affiliate of the Company was an
owner of such Note, in each case, bear the Private Placement Legend, unless
otherwise agreed by the Company (with written notice thereof to the Trustee).
SECTION 2.18. Liquidated Damages Under
Registration Rights Agreement.
Under certain circumstances, the Company shall be obligated to pay
certain liquidated damages to the Holders, all as set forth in Section 4 of the
Registration Rights Agreement (or, with respect to any additional registration
rights agreement entered into in connection with Initial Notes issued subsequent
to the Issue Date pursuant to Section 2.02, the applicable section). The terms
thereof are hereby incorporated herein by reference.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph (5) of
the Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Notes to be redeemed.
The Company shall give each notice provided for in this Section 3.01
60 days before the Redemption Date (unless a shorter notice period shall be
satisfactory to the Trustee, as evidenced in a writing signed on behalf of the
Trustee), together with an Officers' Certificate stating that such redemption
shall comply with the conditions contained herein and in the Notes. Any such
notice may be canceled 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 Notes To Be Redeemed.
In the event that less than all of the Notes are to be redeemed at
any time, selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed (subject to DTC procedures) or, if such
Notes are not then listed on a national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided, however, that no Notes of a principal amount of $1,000 or less shall
be redeemed in part; provided, further, however, that if a partial redemption is
made with the proceeds of a Public Equity Offering, selection of the Notes or
portions thereof for redemption shall be made by the Trustee only on a pro rata
basis or on as nearly a pro rata basis as is practicable (subject to DTC
procedures), unless such method is otherwise prohibited. Notice of redemption
shall be mailed by first-class mail at least 30 but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in a principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. On and after the Redemption Date, interest
will cease to accrue on Notes or portions thereof called for redemption as long
as the Company has deposited with the Paying Agent funds in satisfaction of the
applicable Redemption Price.
SECTION 3.03. Optional Redemption.
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(a) The Notes will be redeemable at the Company's option, in whole
at any time or in part from time to time, on and after June 1, 2003, upon not
less than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on June 1 of the year set forth below, plus,
in each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
2003 . . . . . . . . . . . . . . . . . . . 104.688%
2004 . . . . . . . . . . . . . . . . . . . 103.125%
2005 . . . . . . . . . . . . . . . . . . . 101.563%
2006 and thereafter. . . . . . . . . . . . 100.000%
(b) Notwithstanding the foregoing, at any time, or from time to
time, on or prior to June 1, 2001, the Company may, at its option, redeem up to
35% of the aggregate principal amount of the Notes originally issued with the
net cash proceeds of one or more Public Equity Offerings at a redemption price
equal to 109.375% of the principal amount thereof plus accrued and unpaid
interest to the date of redemption; provided, however, that at least 65% of the
aggregate principal amount of the Notes originally issued remain outstanding
immediately following such redemption. In order to effect the foregoing
redemption with the proceeds of any Public Equity Offering, the Company shall
make such redemption not more than 120 days after the consummation of any such
Public Equity Offering.
SECTION 3.04. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first
class mail to each Holder of Notes to be redeemed at its registered address,
with a copy to the Trustee and any Paying Agent. At the Company's request, the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. The Company shall provide such notices of redemption to the
Trustee at least five days before the intended mailing date.
Each notice of redemption shall identify (including the CUSIP
number) the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
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(4) the subparagraph of the Notes pursuant to which such redemption
is being made;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes or applicable portions thereof called for redemption
ceases to accrue on and after the Redemption Date, and the only remaining right
of the Holders of such Notes is to receive payment of the Redemption Price plus
accrued interest as of the Redemption Date, if any, upon surrender to the Paying
Agent of the Notes redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, and upon surrender of such Note, a new Note or Notes in the aggregate
principal amount equal to the unredeemed portion thereof will be issued; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes.
SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.04,
such notice of redemption shall be irrevocable and Notes called for redemption
become due and payable on the Redemption Date and at the Redemption Price plus
accrued interest as of such date, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the Redemption
Price plus accrued interest thereon to the Redemption Date, but installments of
interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant record
dates referred to in the Notes. Interest shall accrue on or after the Redemption
Date and shall be payable only if the Company defaults in payment of the
Redemption Price.
SECTION 3.06. Deposit of Redemption Price.
On or before the Redemption Date and in accordance with Section
2.14, the Company shall deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the Redemption Price plus
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accrued interest, if any, of all Notes to be redeemed on that date. The Paying
Agent shall promptly return to the Company any U.S. Legal Tender so deposited
which is not required for that purpose, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
Unless the Company fails to comply with the preceding paragraph and
defaults in the payment of such Redemption Price plus accrued interest, if any,
interest on the Notes to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Notes are presented for payment.
SECTION 3.07. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Note or Notes equal in principal amount
to the unredeemed portion of the Note surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
(a) The Company shall pay the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture.
(b) An installment of principal of or interest on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company or any of its Affiliates) holds, prior to 11:00 a.m. New York City
time on that date, U.S. Legal Tender designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture or the Notes.
(c) Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such
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required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 13.02.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do
or cause to be done, at its own cost and expense, all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate existence of each of its Subsidiaries in accordance with the
respective organizational documents of each such Subsidiary and the material
rights (charter and statutory) and franchises of the Company and each such
Subsidiary; provided, however, that the Company shall not be required to
preserve, with respect to itself, any material right or franchise and, with
respect to any of its Subsidiaries, any such existence, material right or
franchise, if the Board of Directors of the Company shall determine in good
faith that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not, and will not be, adverse in any material respect to the
Holders.
SECTION 4.04. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of the Company or any of its
Subsidiaries; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate negotiations or proceedings properly instituted and
diligently conducted for which adequate reserves, to the extent required under
GAAP, have been taken.
SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Subsidiaries to,
maintain all properties used or useful in the conduct of its business in good
working order and condition (subject to ordinary wear and tear) and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto and actively conduct and carry on its business; provided,
however, that nothing in this Section 4.05 shall prevent the Company or any of
the Subsidiaries of the Company from discontinuing the operation and maintenance
of any of its properties, if such discontinuance is (i) in the ordinary course
of business pursuant to customary business terms or (ii) in the good faith
judgment of the respective Boards of Directors or other
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governing body of the Company or Subsidiary, as the case may be, desirable in
the conduct of their respective businesses and is not disadvantageous in any
material respect to the Holders.
(b) The Company shall provide or cause to be provided, for itself
and each of the Subsidiaries of the Company, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Company, are adequate and appropriate for the conduct of the
business of the Company and its Subsidiaries in a prudent manner, with reputable
insurers.
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each of the Company's fiscal years, an Officers' Certificate
(provided, however, that one of the signatories to each such Officers'
Certificate shall be the Company's principal executive officer, principal
financial officer or principal accounting officer), as to such Officers'
knowledge, without independent investigation, of the Company's compliance with
all conditions and covenants under this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and in the event any
Default of the Company's exists, such Officers shall specify the nature of such
Default. Each such Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year-end.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.08 shall be accompanied by a written
report of the Company's independent certified public accountants (who shall be a
firm of established national reputation) stating (A) that their audit
examination has included a review of the terms of this Indenture and the form of
the Notes as they relate to accounting matters, and (B) whether, in connection
with their audit examination, any Default or Event of Default has come to their
attention and if such a Default or Event of Default has come to their attention,
specifying the nature and period of existence thereof; provided, however, that,
without any restriction as to the scope of the audit examination, such
independent certified public accountants shall not be liable by reason of any
failure to obtain knowledge of any such Default or Event of Default that would
not be disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 13.02, by
registered or certified mail or by facsimile transmission followed by hard copy
by registered or certified mail an Officers' Certificate specifying such event,
notice or other action within 10 days of its becoming aware of such occurrence.
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SECTION 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries
to comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America and each other country in which
they conduct business, all states, provinces, and municipalities and other
political subdivisions of the foregoing, and any governmental department,
commission, board, regulatory authority, bureau, agency and instrumentality of
the foregoing, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliance as could
not singly or in the aggregate reasonably be expected to have a material adverse
effect on the financial condition or results of operations of the Company and
its Subsidiaries taken as a whole.
SECTION 4.08. Reports to Holders.
The Company will deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will file with the Commission, to the extent permitted, and provide the Trustee
and the Holders with such annual reports and such information, documents and
other reports specified in Sections 13 and 15(d) of the Exchange Act. The
Company will also comply with the other provisions of Section 314(a) of the TIA.
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.10. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly: (a) declare or pay any
dividend or make any distribution (other than dividends or distributions made to
the Company or any Wholly-Owned Restricted Subsidiary of
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the Company and other than any dividend or distribution payable solely in
Qualified Capital Stock of the Company) on or in respect of its Capital Stock to
holders of such Capital Stock; (b) purchase, redeem or otherwise acquire or
retire for value any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire such Capital Stock (other than the exchange of
such Capital Stock or any warrants, rights or options to acquire Capital Stock
of the Company for Qualified Capital Stock of the Company); (c) make any
principal payment on, purchase, defease, redeem, prepay, decrease or otherwise
acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company or
a Subsidiary Guarantor that is subordinate or junior in right of payment to the
Notes or such Subsidiary Guarantor's Guarantee; or (d) make any Investment
(other than Permitted Investments) (each of the foregoing actions set forth in
clauses (a), (b), (c) and (d) being referred to as a "Restricted Payment"), if
at the time of such Restricted Payment or immediately after giving effect
thereto, (i) a Default or an Event of Default shall have occurred and be
continuing, or (ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12, or (iii) the aggregate amount of all Restricted Payments
(including such proposed Restricted Payment) made subsequent to the Issue Date
(the amount expended for such purposes, if other than in cash, being the Fair
Market Value of such property) shall exceed the sum of: (v) 50% of the
cumulative Consolidated Net Income (or if cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) of the Company earned during the
period beginning on the first day of the fiscal quarter including the Issue Date
and ending on the last day of the fiscal quarter ending at least 30 days prior
to the date the Restricted Payment occurs (the "Reference Date") (treating such
period as a single accounting period); plus (w) 100% of the aggregate net
proceeds (including the Fair Market Value of any business or property other than
cash) received by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date of Qualified
Capital Stock of the Company, including treasury stock; plus (x) without
duplication of any amounts included in clause (iii) (w) above, 100% of the
aggregate net cash proceeds of any equity contribution received by the Company
from a holder of the Company's Capital Stock (excluding, in the case of clauses
(iii) (w) and (x), any net cash proceeds from a Public Equity Offering to the
extent used to redeem the Notes and any net cash proceeds received by the
Company from the sale of Qualified Capital Stock of the Company or equity
contribution which has been financed, directly or indirectly, using funds (1)
borrowed from the Company or any of its Subsidiaries, unless and until and to
the extent such borrowing is repaid or (2) contributed, extended, guaranteed or
advanced by the Company or by any of its Subsidiaries); plus (y) an amount equal
to the net reduction in Investments in Unrestricted Subsidiaries resulting from
dividends, interest payments, repayments of loans or advances, or other
transfers of cash, in each case, to the Company or to any Restricted Subsidiary
of the Company from Unrestricted Subsidiaries (but without duplication of any
such amount included in cumulative Consolidated Net Income of the Company), or
from redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (in
each case valued as provided in Section 4.17), not to exceed, in the case of an
Unrestricted Subsidiary, the amount of Investments previously made by the
Company or any
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Restricted Subsidiary of the Company in such Unrestricted Subsidiary and which
were treated as a Restricted Payment under this Indenture; plus (z) $40.0
million.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph shall not prohibit: (1) the payment of any
dividend or consummation of irrevocable redemption within 60 days after the date
of declaration of such dividend or giving of irrevocable redemption notice if
the dividend or redemption would have been permitted on the date of declaration
or giving of irrevocable redemption notice; (2) if no Default or Event of
Default shall have occurred and be continuing, the acquisition of any Capital
Stock of the Company, either (i) solely in exchange for shares of Qualified
Capital Stock of the Company or (ii) through the application of net proceeds of
a substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company; (3) if no Default
or Event of Default shall have occurred and be continuing, the acquisition or
repayment of any Indebtedness of the Company that is subordinate or junior in
right of payment to the Notes either (i) solely in exchange for shares of
Qualified Capital Stock of the Company, or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of (A) shares of Qualified Capital Stock of the Company or (B)
Refinancing Indebtedness; (4) if no Default or Event of Default shall have
occurred and be continuing, payments by the Company to repurchase Capital Stock
or other securities of the Company from current or former directors, officers
and other employees of the Company or any of its Subsidiaries; and (5) if no
Default or Event of Default shall have occurred and be continuing, purchases of
Capital Stock for use in connection with compensation arrangements of directors,
officers and other employees of the Company and its Subsidiaries, provided that
the aggregate amount of payments pursuant to clauses (4) and (5) shall not
together exceed $5.0 million in any calendar year (net of the net cash proceeds
received by the Company from the purchase by directors, officers and other
employees of Capital Stock in connection with such compensation arrangements)
plus any amount unused for the prior calendar year. In determining the aggregate
amount of Restricted Payments made subsequent to the Issue Date in accordance
with clause (iii) of the immediately preceding paragraph, amounts expended
pursuant to clauses (1), (2) (ii) and (3) (ii) (A) shall be included in such
calculation.
Within 30 days after making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
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SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under clause (b) below and (y) Affiliate Transactions on terms that
are no less favorable than those that might reasonably have been obtained or are
obtainable in a comparable transaction at such time on an arm's-length basis
from a Person that is not an Affiliate of the Company or such Restricted
Subsidiary. In connection with all Affiliate Transactions (and each series of
related Affiliate Transactions which are similar or part of a common plan)
involving aggregate payments or other property with a Fair Market Value in
excess of $10.0 million, the Company shall either (i) obtain the approval of the
Board of Directors of the Company or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions or (ii) obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point of view, from
an Independent Financial Advisor and file the same with the Trustee. If the
Company or any Restricted Subsidiary of the Company enters into an Affiliate
Transaction (or a series of related Affiliate Transactions which are similar or
part of a common plan) involving aggregate payments or other property with a
Fair Market Value in excess of $25.0 million, the Company or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain
a favorable opinion as to the fairness of such transaction or series of related
transactions to the Company or the relevant Restricted Subsidiary, as the case
may be, from a financial point of view, from an Independent Financial Advisor
and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i)
reasonable fees and compensation paid to, and indemnity provided on behalf of,
officers, directors, employees, consultants or agents of the Company or any
Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management; (ii) transactions exclusively
between or among the Company and any of its Restricted Subsidiaries or
exclusively between or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by this Indenture; (iii) transactions
with distributors, suppliers or other purchasers of sales of goods or services,
in each case in the ordinary course of business consistent with the Company's
customary practices and otherwise in compliance with the terms of this
Indenture, and which are fair to the Company or the Restricted Subsidiaries as
applicable, in the reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms at least as favorable
as might reasonably have been obtained at such time from an unaffiliated party;
(iv) any agreement as in effect as of the Issue Date, including the Tax Sharing
Agreement, or any amendment thereto or any transaction contemplated thereby
(including
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pursuant to any amendment thereto) or in any replacement agreement thereto so
long as any such amendment or replacement agreement is not more disadvantageous
to the Holders than the original agreement as in effect on the Issue Date; (v)
loans to the Company provided that the terms thereof, when taken as a whole, are
no less favorable to the Company than those available from a financing source
that is not an Affiliate of the Company; and (vi) Restricted Payments permitted
by this Indenture.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "incur"), any
Indebtedness (including, without limitation, Acquired Indebtedness) other than
Permitted Indebtedness. Notwithstanding the foregoing, if no Default or Event of
Default shall have occurred and be continuing at the time of or as a consequence
of the incurrence of any such Indebtedness, the Company and its Restricted
Subsidiaries which are Subsidiary Guarantors may incur Indebtedness (including,
without limitation, Acquired Indebtedness) if on the date of the incurrence of
such Indebtedness, after giving effect to the incurrence thereof, the
Consolidated Fixed Charge Coverage Ratio of the Company is greater than 2.25 to
1.0. No Indebtedness incurred in compliance with the preceding sentence shall
thereafter be included in calculating any limitation set forth in the definition
of Permitted Indebtedness even if such Indebtedness is of a type which
constitutes, or may constitute, Permitted Indebtedness.
Within 30 days after any incurrence of Indebtedness pursuant to the
second sentence of the preceding paragraph (other than Permitted Indebtedness),
the Company shall deliver to the Trustee an Officers' Certificate setting forth
the calculations by which such incurrence was determined to be permitted.
SECTION 4.13. Limitation on Dividend and Other
Payment Restrictions Affecting Restricted
Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) the Credit Agreement; (4)
non-assignment provisions of any contract or any lease governing a leasehold
interest of any Restricted Subsidiary of the Company; (5) any instrument
governing Acquired Indebtedness,
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which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the properties or
assets of the Person so acquired; (6) agreements existing on the Issue Date to
the extent and in the manner such agreements are in effect on the Issue Date;
(7) Indebtedness or other contractual requirements of a Securitization Entity in
connection with a Qualified Securitization Transaction; provided that such
restrictions apply only to such Securitization Entity; or (8) an agreement
governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or
incurred pursuant to an agreement referred to in clause (2), (3), (5) or (6)
above; provided, however, that the provisions relating to such encumbrance or
restriction contained in any such Indebtedness are no less favorable to the
Company or to the Holders in any material respect as determined by the Board of
Directors of the Company in its reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (3), (5) or (6), respectively.
SECTION 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require that the Company purchase all or a portion of such
Holder's Notes pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of purchase.
(b) Prior to the mailing of the notice referred to below, but in any
event within 30 days following any Change of Control, the Company covenants to
(i) repay in full all indebtedness, and terminate all commitments, under the
Credit Agreement and all other Senior Indebtedness the terms of which require
repayment upon a Change of Control or (ii) obtain the requisite consents under
the Credit Agreement and all other Senior Indebtedness to permit the repurchase
of the Notes as provided below. The Company shall first comply with the covenant
in the immediately preceding sentence before it shall be required to repurchase
Notes pursuant to the provisions described below. The Company's failure to
comply with the second preceding sentence shall be governed by Section 6.01(iii)
and not Section 6.01(iv).
(c) Within 30 days following the date upon which a Change of Control
occurs, the Company shall send, by first class mail, a notice to each Holder at
such Holder's last registered address, with a copy to the Trustee, which notice
shall govern the terms of the Change of Control Offer. The notice to the Holders
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer. Such notice shall state:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.14, that all Notes tendered and not withdrawn will be accepted
for payment and that the Change of Control Offer shall remain open for a period
of 20 Business Days or such longer period as may be required by law;
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(ii) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30 days nor
later than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(v) that Holders electing to have a Note purchased pursuant
to a Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day prior to the Change of Control
Payment Date;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the second Business Day prior to
the Change of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Notes
the Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided, however, that each Note purchased and each new
Note issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(viii) the circumstances and relevant facts regarding such
Change of Control.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Notes or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent in accordance with Section
2.14 U.S. Legal Tender sufficient to pay the purchase price plus accrued
interest, if any, of all Notes so tendered and (iii) deliver to the Trustee
Notes so accepted together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company. Upon receipt by the Paying
Agent of the monies specified in clause (ii) above and a copy of the Officers'
Certificate specified in clause (iii) above, the Paying Agent shall promptly
mail to the Holders of Notes so accepted payment in an amount equal to the
purchase price plus accrued interest, if any, and the Trustee shall promptly
authenticate and mail to such Holders new Notes equal in principal amount to any
unpurchased portion of the Notes surrendered. For purposes of this Section 4.14,
the Trustee shall act as the Paying Agent.
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Neither the Board of Directors of the Company nor the Trustee may
waive the provisions of this Section 4.14 relating to the Company's obligation
to make a Change of Control Offer.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.14, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the provisions of this Section 4.14 by virtue thereof.
SECTION 4.15. Limitation on Asset Sales.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless: (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the Fair Market Value of the
assets sold or otherwise disposed of; (ii) at least 75% of the consideration
received by the Company or the Restricted Subsidiary, as the case may be, from
such Asset Sale shall be in the form of cash or Cash Equivalents and is received
at the time of such disposition; and (iii) upon the consummation of an Asset
Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the
Net Cash Proceeds relating to such Asset Sale within 360 days of receipt thereof
either (A) to prepay any Senior Indebtedness or Guarantor Senior Indebtedness
and, in the case of any Senior Indebtedness or Guarantor Senior Indebtedness
under any revolving credit facility, effect a permanent reduction in the
commitment available under such revolving credit facility, (B) to make an
investment in properties and assets that replace the properties and assets that
were the subject of such Asset Sale or in properties and assets (including
Capital Stock or other equity interests that satisfy the requirements of a
Permitted Joint Venture or result in the Person becoming a Restricted
Subsidiary) that will be used in the business of the Company and its Restricted
Subsidiaries as existing on the Issue Date or in businesses reasonably related
or complementary thereto (as determined in good faith by the Company's Board of
Directors) ("Replacement Assets"), or (C) a combination of prepayment and
investment permitted by the foregoing clauses (iii) (A) and (iii) (B). Pending
final application, the Company or the applicable Restricted Subsidiary may
temporarily reduce Indebtedness under any revolving credit facility or invest in
cash or Cash Equivalents. On the 361st day after an Asset Sale or such earlier
date, if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset
Sale as set forth in clauses (iii) (A), (iii) (B) and (iii) (C) of the next
preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such aggregate
amount of Net Cash Proceeds which have not been applied on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (iii) (A), (iii) (B) and
(iii) (C) of the next preceding sentence (each, a "Net Proceeds Offer Amount")
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the "Net Proceeds
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Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor
more than 45 days following the applicable Net Proceeds Offer Trigger Date, from
all Holders on a pro rata basis, that amount of Notes equal to the Net Proceeds
Offer Amount at a price equal to 100% of the principal amount of the Notes to be
purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase; provided, however, that if at any time any non-cash consideration
received by the Company or any Restricted Subsidiary of the Company, as the case
may be, in connection with any Asset Sale is converted into or sold or otherwise
disposed of for cash or Cash Equivalents (other than interest received with
respect to any such non-cash consideration), then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds
thereof shall be applied in accordance with this Section 4.15. The Company or
any such Restricted Subsidiary of the Company, as the case may be, may defer the
Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer
Amount equal to or in excess of $15.0 million resulting from one or more Asset
Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not
just the amount in excess of $15.0 million, shall be applied as required
pursuant to this paragraph).
(b) Notwithstanding clause (a) of this Section 4.15, (1) the Company
and its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraph to the extent (i) at least 75% of the
consideration for such Asset Sale constitutes Replacement Assets and/or Cash
Equivalents and (ii) such Asset Sale is for Fair Market Value; provided,
however, that any consideration not constituting Replacement Assets received by
the Company or any of its Restricted Subsidiaries in connection with any Asset
Sale permitted to be consummated under this clause (b) shall constitute Net Cash
Proceeds subject to the provisions of clause (a) of this Section 4.15, and (2)
the Company and its Restricted Subsidiaries will be permitted to consummate an
Asset Sale without complying with the requirement that at least 75% of the
consideration received by the Company or its Restricted Subsidiaries be in the
form of cash or Cash Equivalents if any shortfall from such 75% requirement is
deemed an Investment under clause (d) of Section 4.10.
(c) Subject to the deferral of the Net Proceeds Offer contained in
clause (a)(iii) above, each notice of a Net Proceeds Offer pursuant to this
Section 4.15 shall be mailed or caused to be mailed, by first class mail, by the
Company not more than 25 days after the Net Proceeds Offer Trigger Date to all
Holders at their last registered addresses, with a copy to the Trustee. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Net Proceeds Offer and shall state the
following terms:
(i) that the Net Proceeds Offer is being made pursuant to this
Section 4.15, that all Notes tendered will be accepted for payment; provided,
however, that if the aggregate principal amount of Notes tendered in a Net
Proceeds Offer plus accrued interest at the expiration of such offer exceeds the
aggregate amount of the Net Proceeds Offer, the Company shall select the Notes
to be purchased on a pro rata basis (with such adjustments as may be deemed
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appropriate by the Company so that only Notes in denominations of $1,000 or
multiples thereof shall be purchased) and that the Net Proceeds Offer shall
remain open for a period of 20 Business Days or such longer period as may be
required by law;
(ii) the purchase price (including the amount of accrued
interest) and the Net Proceeds Offer Payment Date (which shall be not less than
30 nor more than 45 days following the applicable Net Proceeds Offer Trigger
Date and which shall be at least five Business Days after the Trustee receives
notice thereof from the Company);
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Net Proceeds Offer Payment Date;
(v) that Holders electing to have a Note purchased pursuant to
a Net Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day prior to the Net Proceeds Offer
Payment Date;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the second Business Day prior to
the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have such Note purchased; and
(vii) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided, however, that each Note purchased and each new
Note issued shall be in an original principal amount of $1,000 or integral
multiples thereof;
On or before the Net Proceeds Offer Payment Date, the Company shall
(i) accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (b)(i) above,
(ii) deposit with the Paying Agent in accordance with Section 2.14 U.S. Legal
Tender sufficient to pay the purchase price plus accrued interest, if any, of
all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or portions thereof
being purchased by the Company. The Paying Agent shall promptly mail to the
Holders of Notes so accepted payment in an amount equal to the purchase price
plus accrued interest, if any. For purposes of this Section 4.15, the Trustee
shall act as the Paying Agent. The Trustee shall promptly authenticate and mail
to such
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Holders new Notes equal in principal amount to any unpurchased portion of the
Notes surrendered. Upon the payment of the purchase price for the Notes accepted
for purchase, the Trustee shall return the Notes purchased to the Company for
cancellation. Any monies remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned within three Business Days by the Trustee to
the Company except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven. For purposes of this Section 4.15, the Trustee shall
act as the Paying Agent.
To the extent the amount of Notes tendered pursuant to any Net
Proceeds Offer is less than the amount of Net Cash Proceeds subject to such Net
Proceeds Offer, the Company may use any remaining portion of such Net Cash
Proceeds not required to fund the repurchase of tendered Notes for general
corporate purposes and such Net Proceeds Offer Amount shall be reset to zero.
(d) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under
Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Preferred Stock of Restricted
Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries which
are not Subsidiary Guarantors to issue any Preferred Stock (other than to the
Company or to a Wholly-Owned Restricted Subsidiary of the Company) or permit any
Person (other than the Company or a Wholly-Owned Restricted Subsidiary of the
Company) to own any Preferred Stock of any Restricted Subsidiary of the Company
which is not a Subsidiary Guarantor.
SECTION 4.17. Limitation on Restricted and Unrestricted
Subsidiaries.
(a) The Board of Directors of the Company may, if no Default or
Event of Default shall have occurred and be continuing or would arise therefrom,
designate an Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that (i) any such redesignation shall be deemed to be an incurrence as
of the date of such redesignation by the Company and its Restricted Subsidiaries
of the Indebtedness (if any) of such redesignated Subsidiary for purposes of
Section 4.12, (ii) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Permitted Indebtedness), no such
designation shall be permitted if immediately after giving effect to such
redesignation and the incurrence of any such additional Indebtedness, the
Company could not incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.12 and (iii) such Subsidiary, if a Domestic
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Subsidiary, assumes by execution of a supplemental indenture all of the
obligations of a Subsidiary Guarantor under a Guarantee.
(b) The Board of Directors of the Company also may, if no Default or
Event of Default shall have occurred and be continuing or would arise therefrom,
designate any Restricted Subsidiary (including any newly formed or acquired
Subsidiary) to be an Unrestricted Subsidiary if (i) such designation is at that
time permitted under Section 4.10 above and (ii) immediately after giving effect
to such designation, the Company could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.12 above. Any such
designation by the Board of Directors of the Company shall be evidenced to the
Trustee by the filing with the Trustee of a Board Resolution of the Company
giving effect to such designation or redesignation and an Officers' Certificate
certifying that such designation or redesignation complied with the foregoing
conditions and setting forth in reasonable detail the underlying calculations.
If any Restricted Subsidiary is designated an Unrestricted Subsidiary in
accordance with this Section 4.17, such Restricted Subsidiary's Guarantee will
be automatically discharged and released.
(c) For purposes of Section 4.10, (i) an "Investment" shall be
deemed to have been made at the time any Restricted Subsidiary of the Company is
designated as an Unrestricted Subsidiary in an amount (proportionate to the
Company's equity interest in such Subsidiary) equal to the net worth of such
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
as an Unrestricted Subsidiary; (ii) at any date, the aggregate amount of all
Restricted Payments made as Investments since the Issue Date shall exclude and
be reduced by an amount (proportionate to the Company's equity interest in such
Subsidiary) equal to the net worth of any Unrestricted Subsidiary at the time
that such Unrestricted Subsidiary is designated as a Restricted Subsidiary, not
to exceed, in the case of any such redesignation of an Unrestricted Subsidiary
as a Restricted Subsidiary, the amount of Investments previously made by the
Company and its Restricted Subsidiaries in such Unrestricted Subsidiary (in each
case (i) and (ii), "net worth" to be calculated based upon the Fair Market Value
of such Subsidiary as of any such date of designation); and (iii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its Fair
Market Value at the time of such transfer.
(d) Notwithstanding the foregoing, the Board of Directors of the
Company may not designate any Restricted Subsidiary of the Company to be an
Unrestricted Subsidiary if, after any such designation, such Subsidiary owns any
Capital Stock of, or holds any Lien on any property of, the Company or any
Restricted Subsidiary of the Company which is not a Subsidiary of the Subsidiary
to be so designated.
(e) Subsidiaries of the Company that are not designated by the Board
of Directors of the Company as Restricted or Unrestricted Subsidiaries will be
deemed to be Restricted Subsidiaries of the Company. Notwithstanding the
foregoing, all Subsidiaries of an Unrestricted Subsidiary will be Unrestricted
Subsidiaries.
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SECTION 4.18. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes or any Guarantee, the
Notes and such Guarantee, as the case may be, are secured by a Lien on such
property, assets or proceeds that is senior in priority to such Liens and (ii)
in all other cases, the Notes and the Guarantees are equally and ratably secured
for so long as such Lien exists, except for (A) Liens existing as of the Issue
Date to the extent and in the manner such Liens are in effect on the Issue Date;
(B) Liens securing Senior Indebtedness or Guarantor Senior Indebtedness; (C)
Liens securing the Notes and the Guarantees; (D) Liens of the Company or a
Wholly-Owned Restricted Subsidiary of the Company on assets of any Restricted
Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is
incurred to Refinance any Indebtedness which has been secured by a Lien
permitted under this Indenture and which has been incurred in accordance with
the provisions of this Indenture; provided, however, that such Liens (1) are no
less favorable to the Holders and are not more favorable to the lienholders with
respect to such Liens than the Liens in respect of the Indebtedness being
Refinanced and (2) do not extend to or cover any property or assets of the
Company or any of its Subsidiaries not securing the Indebtedness so Refinanced
(other than property or assets subject to Liens under clause (B) above); and (F)
Permitted Liens.
SECTION 4.19. Conduct of Business.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries (other than a Securitization Entity) to, engage in any
businesses other than the businesses in which the Company is engaged on the
Issue Date, and any businesses reasonably related or complementary thereto (as
determined in good faith by the Company's Board of Directors).
SECTION 4.20. Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries transfers or
causes to be transferred, in one transaction or a series of related
transactions, any property having a Fair Market Value in excess of $2.5 million
to any Restricted Subsidiary that is not a Subsidiary Guarantor, or if the
Company or any of its Restricted Subsidiaries shall organize, acquire or
otherwise invest in another Restricted Subsidiary that is not a Subsidiary
Guarantor which has property with a Fair Market Value in excess of $2.5 million,
then such transferee or acquired or other Subsidiary (other than, in any such
case, a Foreign Subsidiary) shall (a) execute and deliver to the Trustee a
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supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes and this Indenture on the terms set forth in this
Indenture and (b) deliver to the Trustee an opinion of counsel that such
supplemental indenture has been duly authorized, executed and delivered by such
Subsidiary and constitutes a legal, valid, binding and enforceable obligation of
such Subsidiary, subject to customary exceptions. After the execution and
delivery of such supplemental indenture, such Subsidiary shall be a Subsidiary
Guarantor for all purposes of this Indenture.
SECTION 4.21. Limitation of Guarantees by Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries,
directly or indirectly, by way of the pledge of any intercompany note or
otherwise, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Company or any other Restricted Subsidiary
(other than any guarantee by a Foreign Restricted Subsidiary of Indebtedness of
another Foreign Restricted Subsidiary permitted under Section 4.12), unless, in
any such case (a) such Restricted Subsidiary, if it is not a Subsidiary
Guarantor, executes and delivers a supplemental indenture to this Indenture,
providing a Guarantee and (b) (x) if any such assumption, guarantee or other
liability of such Restricted Subsidiary is provided in respect of Senior
Indebtedness, the guarantee or other instrument provided by such Restricted
Subsidiary in respect of such Senior Indebtedness may be superior to the
Guarantee pursuant to subordination provisions which, taken as a whole, are no
less favorable in any material respect to the Holders than those contained in
this Indenture and (y) if such assumption, guarantee or other liability of such
Restricted Subsidiary is provided in respect of Indebtedness that is expressly
subordinated to the Notes, the guarantee or other instrument provided by such
Restricted Subsidiary in respect of such subordinated Indebtedness shall be
subordinated to the Guarantee pursuant to subordination provisions which, taken
as a whole, are no less favorable in any material respect to the Holders than
those contained in this Indenture.
Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Notes pursuant to the foregoing paragraph shall provide by its
terms that it shall be automatically and unconditionally released and
discharged, without any further action required on the part of the Trustee or
any Holder, upon: (i) the unconditional release of such Restricted Subsidiary
from its liability in respect of the Indebtedness in connection with which such
Guarantee was executed and delivered pursuant to the preceding paragraph; or
(ii) any sale or other disposition (by merger or otherwise) to any Person which
is not a Restricted Subsidiary of the Company of all of the Company's (or a
Restricted Subsidiary of the Company's) Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary or the parent of
such Restricted Subsidiary; provided, that (a) such sale or disposition of such
Capital Stock or assets is otherwise in compliance with the terms of this
Indenture and (b) such assumption, guarantee or other liability of such
Restricted Subsidiary has been released by the holders of the other Indebtedness
so
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guaranteed or (iii) such Subsidiary Guarantor becoming an Unrestricted
Subsidiary in accordance with this Indenture.
SECTION 4.22. Prohibition on Incurrence
of Senior Subordinated Debt.
The Company will not incur or suffer to exist Indebtedness that by
its terms is senior in right of payment to the Notes and subordinate in right of
payment to any other Indebtedness of the Company. No Subsidiary Guarantor shall
incur or suffer to exist Indebtedness that by its terms is senior in right of
payment to the Guarantees and subordinate in right of payment to any other
Indebtedness of such Subsidiary Guarantor.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries) unless: (i) either (1) the Company shall be the surviving or
continuing corporation or (2) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other disposition
the properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall be
a corporation organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia and (y) shall expressly assume
as primary obligor, by supplemental indenture (in form and substance
satisfactory to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, and interest on all
of the Notes and the performance of every covenant of the Notes, this Indenture
and the Registration Rights Agreement on the part of the Company to be performed
or observed, as the case may be; (ii) immediately after giving effect to such
transaction and the assumption contemplated by clause (i) (2) (y) above
(including giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, (1)
shall have a Consolidated Net Worth equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction and (2) shall be
able to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.12;
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(iii) immediately before and immediately after giving effect to such transaction
and the assumption contemplated by clause (i) (2) (y) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred and any Lien granted in connection with or in
respect of the transaction), no Default or Event of Default shall have occurred
or be continuing; and (iv) the Company or the Surviving Entity, as the case may
be, shall have delivered to the Trustee an Officers' certificate and an Opinion
of Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the Company
shall be deemed to be the transfer of all or substantially all of the properties
and assets of the Company.
(c) Each Subsidiary Guarantor (other than any Subsidiary Guarantor
whose Guarantee is to be released in accordance with the terms of the Guarantee
and this Indenture in connection with any transaction complying with the
provisions of Section 4.15) will not, and the Company will not cause or permit
any Subsidiary Guarantor to, consolidate with or merge with or into any Person
other than the Company or another Subsidiary Guarantor that is a Wholly-Owned
Subsidiary unless: (a) the entity formed by or surviving any such consolidation
or merger (if other than the Subsidiary Guarantor) or to which such sale, lease,
conveyance or other disposition shall have been made is a corporation organized
and existing under the laws of the United States or any State thereof or the
District of Columbia; (b) such entity assumes by execution of a supplemental
indenture all of the obligations of the Subsidiary Guarantor under its
Guarantee; (c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and (d) immediately
after giving effect to such transaction and the use of any net proceeds
therefrom on a pro forma basis, the Company could satisfy the provisions of
clause (ii) of paragraph (a) of this Section 5.01. Any merger or consolidation
of a Subsidiary Guarantor with and into the Company (with the Company being the
surviving entity) or another Subsidiary Guarantor that is a Wholly-Owned
Restricted Subsidiary need only comply with clause (iv) of paragraph (a) of this
Section 5.01.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of the Company in accordance with Section
5.01, in which the Company is not the continuing corporation, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and
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be substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such successor had been
named as the Company herein.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" means any of the following events:
(i) the failure to pay interest (including any Additional Interest,
if any) on any Notes when the same becomes due and payable and the default
continues for a period of 30 days (whether or not such payment is prohibited by
Article Ten of this Indenture);
(ii) the failure to pay the principal on any Notes when such
principal becomes due and payable, at maturity, upon acceleration, upon
redemption or otherwise (including the failure to make a payment to purchase
Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer)
(whether or not such payment is prohibited by Article Ten of this Indenture);
(iii) failure to perform or comply with the restrictive covenants in
Section 5.01;
(iv) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default continues for a
period of 45 days after the Company receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Notes;
(v) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the Company, or the
acceleration of the final stated maturity of any such Indebtedness, if the
aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
final maturity or which has been accelerated, aggregates $15.0 million or more
at any time;
(vi) one or more judgments in an aggregate amount in excess of $15.0
million shall have been rendered against the Company or any of its Subsidiaries
and such judgments remain undischarged, unpaid or unstayed for a period of 60
days after such judgment or judgments become final and non-appealable;
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(vii) the Company or any of its Significant Subsidiaries pursuant
to or under or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it
in an involuntary case or proceeding;
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property;
(d) makes a general assignment for the benefit of its
creditors; or
(e) shall generally not pay its debts when such debts become
due or shall admit in writing its inability to pay its debts generally;
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case or proceeding;
(b) appoints a Custodian of the Company or any Significant
Subsidiary of the Company for all or substantially all of its properties; or
(c) orders the liquidation of the Company or any Significant
Subsidiary of the Company, and in each case the order or decree remains unstayed
and in effect for 60 consecutive days; or
(ix) any of the Guarantees ceases to be in full force and effect or
any of the Guarantees is declared to be null and void or any of the Guarantees
is found to be invalid or unenforceable or any of the Subsidiary Guarantors
denies or disaffirms its liability under its Guarantee (other than by reason of
the release of a Subsidiary Guarantor in accordance with the terms of this
Indenture).
SECTION 6.02. Acceleration.
(a) Upon the happening of an Event of Default specified in Section
6.01 (other than an Event of Default specified in clause (vii) or (viii) of
Section 6.01), the Trustee or the holders of at least 25% in principal amount of
outstanding Notes may declare the principal of and accrued interest on all the
Notes to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that such notice is a "notice of
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acceleration" (the "Acceleration Notice"), and the same shall become immediately
due and payable provided that if there are any amounts outstanding under the
Credit Agreement, such principal of and interest on the Notes shall become due
and payable upon the first to occur of an acceleration under the Credit
Agreement or five business days after receipt by the Company and the
Representative under the Credit Agreement of such Acceleration Notice, unless
the Event or Events of Default specified in such Acceleration Notice (other than
any Event of Default in respect of non-payment of principal) shall have been
cured or waived in writing. If an Event of Default specified in clause (vii) or
(viii) of Section 6.01 occurs and is continuing, then all unpaid principal of,
and premium, if any, and accrued and unpaid interest on all of the outstanding
Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with
respect to the Notes as described in the preceding paragraph, the Holders of a
majority in aggregate principal amount of the Notes then outstanding by written
notice to the Company and the Trustee may rescind and cancel such declaration
and its consequences (i) if the rescission would not conflict with any judgment
or decree, (ii) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
such acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (vii) or (viii) of Section 6.01, the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of the principal of, premium, if any, or interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes
may be enforced by the Trustee even if it does not possess any of the Notes or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
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SECTION 6.04. Waiver of Past Defaults.
Prior to the declaration of acceleration of the Notes, the Holders
of not less than a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may, on behalf of the Holders of all the
Notes, waive any existing Default or Event of Default and its consequences under
this Indenture, except a Default or Event of Default specified in Section
6.01(i) or (ii) or in respect of any provision hereof which cannot be modified
or amended without the consent of the Holder so affected pursuant to Section
9.02. When a Default or Event of Default is so waived, it shall be deemed cured
and shall cease to exist. This Section 6.04 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
SECTION 6.05. Control by Majority.
Subject to Section 9.02, the Holders of the Notes may not enforce
this Indenture or the Notes except as provided in this Article Six and under the
TIA. The Holders of not less than a majority in aggregate principal amount of
the outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided, however, that
the Trustee may refuse to follow any direction (a) that conflicts with any rule
of law or this Indenture, (b) that the Trustee determines may be unduly
prejudicial to the rights of another Holder, or (c) that may expose the Trustee
to personal liability for which reasonable indemnity provided to the Trustee
against such liability shall be inadequate; provided, further, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction or this Indenture.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holders offer to the Trustee indemnity or security against
any loss, liability or expense to be incurred in compliance with
such request which is satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer of satisfactory indemnity
or security; and
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(5) during such 45-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the
Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Right of Holders To Receive Payment.
Notwithstanding any other provision in this Indenture, the right of
any Holder of a Note to receive payment of the principal of, premium, if any,
and interest on such Note, on or after the respective due dates expressed or
provided for in such Note, or to bring suit for the enforcement of any such
payment on or after the respective due dates, is absolute and unconditional and
shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in clause (i) or (ii) of Section
6.01 occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company, or any other obligor on
the Notes for the whole amount of the principal of, premium, if any, and accrued
interest remaining unpaid, together with interest on overdue principal and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum provided for by the
Notes and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents, counsel, accountants and
experts) and the Holders allowed in any judicial proceedings relative to the
Company or Subsidiaries (or any other obligor upon the Notes), their creditors
or their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.07. The Company's
payment obligations under this
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Section 6.09 shall be secured in accordance with the provisions of Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six it
shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for interest;
Third: to Holders for the principal amounts (including any premium)
owing under the Notes, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for the principal
(including any premium); and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may in its discretion require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in aggregate principal amount of the outstanding Notes.
SECTION 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Note and such proceeding
has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every
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such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee may exercise such of the rights and powers vested in it by this
Indenture and shall use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no duties, covenants or obligations
of the Trustee shall be implied in this Indenture.
(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, in the
case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(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.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to
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take in good faith in accordance with a direction received by it pursuant to
Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01 and
Section 7.02.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
(g) The Trustee may refuse to perform any duty or exercise any right
or power hereunder unless (i) it is provided adequate funds to enable it to do
so and (ii) it receives indemnity reasonably satisfactory to it against any
loss, liability, fee or expense.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not and
shall not be required to investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate or an
Opinion of Counsel, or both, which shall conform to Sections 13.04 and 13.05.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters
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stated in any resolution, certificate, statement, instrument, opinion, notice,
request, direction, consent, order, bond, debenture, or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled, upon reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney and to consult
with the officers and representatives of the Company, including the Company's
accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred by it in compliance with such request, order
or direction.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) Delivery of reports, information and documents to the Trustee
under Section 4.08 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any of their
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, and it shall not
be accountable for the Company's use of the proceeds from the Notes, and it
shall not be responsible for any statement of the Company in this Indenture or
any document entered into or issued in connection with the issuance and sale of
the Notes or any statement in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to a Trust
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Officer, the Trustee shall mail to each Holder notice of the uncured Default or
Event of Default within 90 days after obtaining knowledge thereof. Except in the
case of a Default or an Event of Default in payment of principal of, or interest
on, any Note, including an accelerated payment, a Default in payment on the
Change of Control Payment Date pursuant to a Change of Control Offer or on the
Net Proceeds Offer Payment Date pursuant to a Net Proceeds Offer and a Default
in compliance with Article Five hereof, the Trustee may withhold the notice if
and so long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders. The
foregoing sentence of this Section 7.05 shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso to Section 315(b) of the TIA is
hereby expressly excluded from this Indenture and the Notes, as permitted by the
TIA.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after June 1 of each year beginning with 1998, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder a brief report dated as of such date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the Commission and each stock exchange, if
any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange and the Trustee shall comply with TIA Section
313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as has been agreed to by the Company and the
Trustee. 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 disbursements, advances or
expenses incurred or made by it in connection with the performance of its duties
under this Indenture. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents, counsel, accountants and experts.
The Company shall indemnify each of the Trustee (or any predecessor
Trustee) and its agents, employees, stockholders, Affiliates and directors and
officers for, and hold them each harmless against, any and all loss, liability,
damage, claim or expense (including reasonable fees and expenses of counsel),
including taxes (other than taxes based on the income of the Trustee) incurred
by any of them except for such actions to the extent caused by any negligence,
bad faith or willful misconduct on their part, arising out of or in connection
with the acceptance or
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administration of this trust including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity, provided, however, that failure to so
notify the Company shall not release the Company of its obligations hereunder
unless and to the extent such failure results in the forfeiture by the Company
of substantial rights and defenses. At the Trustee's sole discretion, the
Company shall defend the claim and the Trustee shall cooperate and may
participate in the defense; provided, however, that any settlement of a claim
shall be approved in writing by the Trustee, such approval not to be
unreasonably withheld. Alternatively, the Trustee may at its option have
separate counsel of its own choosing and the Company shall pay the reasonable
fees and expenses of such counsel.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or premium, if any, or interest on particular
Notes, provided that nothing herein shall affect the operation of Section 6.10
First hereunder.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(vii) or (viii) occurs, such expenses and
the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law. The provisions of this Section 7.07
shall survive the termination of this Indenture or the resignation or removal of
the Trustee.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days in advance of such resignation; provided, however, that
no such resignation shall be effective until a successor Trustee has accepted
its appointment pursuant to this Section 7.08. The Holders of a majority in
principal amount of the outstanding Notes may remove the Trustee and appoint a
successor Trustee with the Company's consent, by so notifying the Company and
the Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail notice of such successor Trustee's
appointment to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in aggregate principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding any resignation or replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however, that
such corporation shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the case
of a Trustee that is a corporation included in a bank holding company system,
the related bank holding company) shall have a combined capital and surplus of
at least $50 million as set forth in its most recent published annual report of
condition, and have a Corporate Trust Office in the City of New York. In
addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of such
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bank holding company, shall meet the capital requirements of TIA Section
310(a)(2). 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 outstanding,
if the requirements for such exclusion set forth in TIA Section 310(b)(1) are
met. The provisions of TIA Section 310 shall apply to the Company, as obligor of
the Notes.
SECTION 7.11. Preferential Collection of
Claims Against the 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
therein. The provisions of TIA Section 311 shall apply to the Company, as
obligor of the Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations.
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Notes, as expressly provided for in this Indenture) as to all outstanding
Notes when (i) either (a) all Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of deposit together with
irrevocable instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be; (ii)
the Company has paid all other sums payable under this Indenture by the Company;
and (iii) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied
with.
The Company may, at its option and at any time, elect to have its
obligations and the
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corresponding obligations of the Subsidiary Guarantors discharged with respect
to the outstanding Notes ("Legal Defeasance"). Such Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Notes, except for (i) the rights of Holders to
receive payments, solely from the trust fund created under this Section 8.01, in
respect of the principal of, premium, if any, and interest on the Notes when
such payments are due, (ii) the Company's obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payments,
(iii) the rights, powers, trust, duties and immunities of the Trustee and the
Company's obligations in connection therewith including, but not limited to,
those contained in Section 7.07 and (iv) the Legal Defeasance provisions of this
Section 8.01. In addition, the Company may, at its option and at any time, elect
to have the obligations of the Company and its Restricted Subsidiaries released
with respect to covenants contained in Sections 4.10 through 4.22 and Article
Five ("Covenant Defeasance") and thereafter any omission to comply with such
obligations shall not constitute a Default or Event of Default with respect to
the Notes. In the event of Covenant Defeasance, those events described under
Section 6.01 (except those events described in Section 6.01(i),(ii),(vii) and
(viii)) will no longer constitute an Event of Default with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(i) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders cash in United States dollars, non-callable U.S.
Government Obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on the Notes
on the stated date for payment thereof or on the applicable Redemption Date, as
the case may be;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (w) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (x) 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 Holders will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Legal
Defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to U.S. federal income tax
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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;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default under
Section 6.01(vii) or (viii) are concerned, at any time in the period ending on
the 91st day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the
Company or others;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with;
(viii) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds will not be subject to any rights
of holders of Indebtedness of the Company other than the Notes and (B) after the
91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally; and
(ix) certain other customary conditions precedent are satisfied.
SECTION 8.02. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Section 8.01, and
shall apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of the principal of
and interest on the Notes. The Trustee shall be under no obligation to invest
said U.S. Legal Tender or U.S. Government Obligations except as it may agree in
writing with the Company.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Notes.
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SECTION 8.03. Repayment to the Company.
Subject to Section 8.01, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess U.S. Legal Tender or U.S.
Government Obligations held by them at any time and thereupon shall be relieved
from all liability with respect to such money. 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 one year; provided, however,
that the Trustee or such Paying Agent, before being required to make any
payment, may at the expense of the Company cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person.
SECTION 8.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 8.01 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.01 until such time as the Trustee or Paying Agent is permitted to apply all
such U.S. Legal Tender or U.S. Government Obligations in accordance with Section
8.01; provided, however, that if the Company has made any payment of interest on
or principal of any Notes because of the reinstatement of their obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.
SECTION 8.05. Acknowledgment of Discharge by Trustee.
After (i) the conditions of Section 8.01 have been satisfied, (ii)
the Company has paid or caused to be paid all other sums payable hereunder by
the Company and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified in Section 8.01;
provided the legal counsel delivering such Opinion of Counsel may rely as to
matters of fact on one or more Officers' Certificates of the Company.
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ARTICLE NINE
MODIFICATION OF THE INDENTURE
SECTION 9.01. Without Consent of Holders.
Notwithstanding Section 9.02, the Company, the Subsidiary Guarantors
and the Trustee may amend, waive or supplement this Indenture without notice to
or consent of any Holder: (a) to cure any ambiguity, defect or inconsistency, so
long as such change does not, in the opinion of the Trustee, adversely affect
the rights of any of the Holders in any material respect; (b) to comply with
Article V of this Indenture; (c) to provide for uncertificated Notes in addition
to certificated Notes; (d) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the TIA;
or (e) to make any other change that would provide any additional benefit or
rights to the Holders or that does not adversely affect in any material respect
the rights of any of the Holders; provided, however, that the Company has
delivered to the Trustee an Opinion of Counsel and an Officers' Certificate,
each stating that such amendment or supplement complies with the provisions of
this Section 9.01. In formulating its opinion on such matters, the Trustee will
be entitled to rely on such evidence as it deems appropriate, including, without
limitation, solely on an Opinion of Counsel.
SECTION 9.02. With Consent of Holders.
All other modifications, waivers and amendments of this Indenture
may be made with the consent of the Holders of a majority in principal amount of
the then outstanding Notes, except that, without the consent of each Holder of
the Notes affected thereby, no amendment or waiver may: (i) reduce the amount of
Notes whose Holders must consent to an amendment; (ii) reduce the rate of or
change or have the effect of changing the time for payment of interest,
including defaulted interest, on any Notes; (iii) reduce the principal of or
change or have the effect of changing the fixed maturity of any Notes, or change
the date on which any Notes may be subject to redemption or repurchase, or
reduce the redemption or repurchase price therefor; (iv) make any Notes payable
in money other than that stated in the Notes; (v) make any change in provisions
of this Indenture protecting the right of each Holder to receive payment of
principal of and interest on such Note on or after the due date thereof or to
bring suit to enforce such payment, or permitting Holders of a majority in
principal amount of Notes to waive Defaults or Events of Default; (vi) amend,
change or modify in any material respect the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of Control or
make and consummate a Net Proceeds Offer with respect to any Asset Sale that has
been consummated or modify any of the provisions or definitions with respect
thereto; (vii) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Notes or any Guarantee
in a manner which adversely affects the Holders; or (viii) release any
Subsidiary Guarantor from any of its obligations under its Guarantee or this
Indenture other than in accordance with the terms of this Indenture.
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After an amendment, supplement or waiver under this Section 9.02
becomes effective (as provided in Section 9.04), the Company shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect; provided, however, that this
Section 9.03 shall not of itself require that this Indenture or the Trustee be
qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver. An amendment, supplement
or waiver becomes effective upon receipt by the Trustee of such Officers'
Certificate and evidence of consent by the Holders of the requisite percentage
in principal amount of outstanding Notes.
The Company may, but shall not be obligated to, fix a Record Date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which Record Date shall be at least 30 days prior to the
first solicitation of such consent. If a Record Date is fixed, then
notwithstanding the second sentence of the immediately preceding paragraph,
those Persons who were Holders at such Record Date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
Record Date. No such consent shall be valid or effective for more than 90 days
after such Record Date unless consents from Holders of the requisite percentage
in principal amount of outstanding Notes required hereunder for the
effectiveness of such consents shall have also been given and not revoked within
such 90 day period.
SECTION 9.05. Notation on or Exchange of Notes.
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If an amendment, supplement or waiver changes the terms of a Note,
the Trustee may require the Holder of such Note to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determine, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided, however, that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. In executing such supplement or waiver the Trustee shall be entitled
to receive indemnity reasonably satisfactory to it, and shall be fully protected
in relying upon an Opinion of Counsel and an Officers' Certificate of the
Company, stating that no event of default shall occur as a result of such
amendment, supplement or waiver and that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture; provided the legal counsel delivering such Opinion
of Counsel may rely as to matters of fact on one or more Officers' Certificates
of the Company. Such Opinion of Counsel shall not be an expense of the Trustee.
SECTION 9.07. Trustee To Sign Consents.
The Trustee shall at the request of the Company execute a consent or
approval of any merger, consolidation or sale of assets pursuant to Article Five
if and to the extent such consent or approval is required by applicable law;
provided, however, that the Trustee may, but shall not be obligated to, execute
any such consent or approval which affects the Trustee's own rights, duties or
immunities under this Indenture. In executing such approval or consent the
Trustee will receive indemnity reasonably satisfactory to it, and shall be fully
protected in relying upon an Opinion of Counsel and an Officers' Certificate of
the Company, stating that no event of default shall occur as a result of such
consent or approval, that no Holder consent is required with respect to such
merger, consolidation or sale of assets and that the execution of any consent or
approval authorized pursuant to this Article Nine is authorized or permitted by
this Indenture; provided, the legal counsel delivering such Opinion of Counsel
may rely as to matters of fact on one or more Officers' Certificates of the
Company. Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Indebtedness.
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The Company, for itself and its successors, covenants and agrees,
and each Holder of the Notes, by its acceptance thereof, likewise covenants and
agrees, that all Notes shall be subject to the provisions of this Article Ten;
and the Company and each Person holding any Note, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees that the
payment of all Obligations on the Notes by the Company shall, to the extent and
in the manner herein set forth, be subordinated and junior in right of payment
to the prior payment and satisfaction in full in cash or Cash Instruments of all
Obligations on Senior Indebtedness, including, without limitation, the Company's
obligations under the Credit Agreement; that the subordination is for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness, and that each holder of Senior Indebtedness whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Indebtedness in reliance upon the covenants and
provisions contained in this Indenture and the Notes.
SECTION 10.02 Suspension of Payment When
Senior Indebtedness is in Default.
(a) No direct or indirect payment by or on behalf of the Company of
Obligations on the Notes whether pursuant to the terms of the Notes or upon
acceleration or otherwise shall be made if, at the time of such payment, there
exists a default in the payment of all or any portion of principal of, premium,
if any, or interest on, any Designated Senior Indebtedness (and the Trustee has
received written notice thereof), and such default shall not have been cured or
waived in writing or the benefits of this sentence waived in writing by or on
behalf of the holders of such Designated Senior Indebtedness. In addition, if
any other event of default occurs and is continuing with respect to any
Designated Senior Indebtedness, as such event of default is defined in the
instrument creating or evidencing such Designated Senior Indebtedness,
permitting the holders of such Designated Senior Indebtedness then outstanding
to accelerate the maturity thereof and if the Representative for the respective
issue of Designated Senior Indebtedness gives notice of the event of default to
the Trustee (a "Default Notice"), then, unless and until all events of default
have been cured or waived in writing or have ceased to exist or the Trustee
receives notice thereof from the Representative for the respective issue of
Designated Senior Indebtedness terminating the Blockage Period (as defined
below), during the 180 days after the delivery of such Default Notice (the
"Blockage Period"), neither the Company nor any other Person on its behalf shall
(x) make any payment of any kind or character with respect to any Obligations on
the Notes or (y) acquire any of the Notes for cash or property or otherwise.
Notwithstanding anything herein to the contrary, in no event will a Blockage
Period extend beyond 180 days from the date the payment on the Notes was due and
only one such Blockage Period may be commenced within any 360 consecutive days.
No event of default which existed or was continuing on the date of the
commencement of any Blockage Period with respect to the Designated Senior
Indebtedness shall be, or be made, the basis for commencement of a second
Blockage Period by the Representative of such Designated Senior Indebtedness
whether or not within a period of 360 consecutive days, unless such event of
default shall have been cured or waived in writing for a period of not less
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than 90 consecutive days (it being acknowledged that any subsequent action, or
any breach of any of the financial covenants for a new accounting period
commencing after the date of such Blockage Period that, in either case, would
give rise to an event of default pursuant to any provisions under which an event
of default previously existed or was continuing shall constitute a new event of
default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders) or their respective Representatives upon written
instruction of the Company or a court of competent jurisdiction. The Trustee
shall be entitled to rely on written information regarding amounts then due and
owing on the Senior Indebtedness, if any, received from the Company and only
amounts included in the information provided to the Trustee shall be paid to the
holders of Senior Indebtedness.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all Senior Indebtedness thereafter due or declared to
be due shall first be paid in full in cash or Cash Instruments before the
Holders are entitled to receive any payment of any kind or character with
respect to Obligations on the Notes.
SECTION 10.03. Notes Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution,
Liquidation or Reorganization of Company.
Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors or marshaling of assets of the Company, whether voluntary or
involuntary, or in a bankruptcy, reorganization, insolvency, receivership or
other similar proceeding relating to the Company or its property, whether
voluntary or involuntary:
(a) the holders of all Senior Indebtedness shall first be entitled
to receive payments in full in cash or Cash Instruments, or such payment duly
provided for to the satisfaction of the holders of Senior Indebtedness, of all
amounts payable under Senior Indebtedness before the Holders will be entitled to
receive any payment or distribution of any kind or character on account of any
Notes or for the acquisition of any of the Notes for cash or property or
otherwise, and until all Obligations with respect to the Senior Indebtedness are
paid in full in cash or Cash Instruments, or such payment duly provided for to
the satisfaction of the holders of Senior Indebtedness, any distribution to
which the Holders would be entitled shall be made to the holders
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of Senior Indebtedness;
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders or
the Trustee on behalf of the Holders would be entitled except for the provisions
of this Article Ten shall be paid by the liquidating trustee or agent or other
Person making such a payment or distribution, directly to the holders of Senior
Indebtedness or their Representatives, ratably according to the respective
amounts of Senior Indebtedness remaining unpaid held or represented by each,
until all Senior Indebtedness remaining unpaid shall have been paid in full in
cash or Cash Instruments, or such payment duly provided for to the satisfaction
of the holders of Senior Indebtedness, after giving effect to any concurrent
payment or distribution to the holders of Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether such
payment shall be in cash, property or securities, and the Comany shall have made
payment to the Trustee or directly to the Holders or any Paying Agent on account
of any Obligations under the Notes before all Senior Indebtedness is paid in
full in cash or Cash Instruments, or such payment duly provided for to the
satisfaction of the holders of Senior Indebtedness, such payment or distribution
(subject to the provisions of Sections 10.06 and 10.07) shall be received,
segregated from other funds, and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of, and shall immediately be paid over by the
Trustee (if the notice required by Section 10.06 has been received by the
Trustee) or by the Holder to, the holders of Senior Indebtedness or their
Representatives, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, until all Senior Indebtedness
remaining unpaid shall have been paid in full in cash or Cash Instruments, or
such payment duly provided for to the satisfaction of the holders of Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of the Senior
Indebtedness shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer, assume the
Company's obligations hereunder in accordance with Article Five hereof.
The Company shall give prompt notice to the Trustee prior to any
dissolution, winding-up, total or partial liquidation or total or reorganization
(including, without limitation, in bankruptcy, insolvency, or receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshaling of the Company's assets and liabilities).
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SECTION 10.04. Holders To Be Subrogated to Rights
of Holders of Senior Indebtedness.
Subject to the payment and satisfaction in full in cash or Cash
Instruments of all Senior Indebtedness, the Holders of the Notes shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the Notes shall be paid in full;
and, for the purposes of such subrogation, no such payments or distributions to
the holders of the Senior Indebtedness by or on behalf of the Company or by or
on behalf of the Holders by virtue of this Article Ten which otherwise would
have been made to the Holders shall, as between the Company and the Holders of
the Notes, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of this Article Ten
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 10.05. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of the
Company other than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Ten of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
or securities of the Company referred to in this Article Ten, the Trustee,
subject to the provisions of Sections 7.01 and 7.02, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any liquidation, dissolution, winding-up or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee or agent or other Person making any payment or
distribution to the Trustee or to the Holders for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the holders
of Senior Indebtedness 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 Ten. Nothing in this Article
Ten shall apply to the claims of, or payments to, the Trustee under or pursuant
to Section 7.07. 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 (or a trustee on behalf of, or other representative of,
such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder.
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In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Ten, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 10.06. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten. Regardless of anything to the contrary contained in this Article
Ten or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Indebtedness or of any other facts which would prohibit the making of
any payment to or by the Trustee unless and until a Trust Officer shall have
received notice in writing from the Company, or from a holder of Senior
Indebtedness or a Representative therefor, together with proof satisfactory to
the Trustee of such holding of Senior Indebtedness or of the authority of such
Representative, and, prior to the receipt of any such written notice, the
Trustee shall be entitled to assume (in the absence of actual knowledge to the
contrary) that no such facts exist.
SECTION 10.07. Application by Trustee
of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Sections 8.01 and 8.02 shall
be for the sole benefit of the Holders of the Notes and, to the extent allocated
for the payment of Notes, shall not be subject to the subordination provisions
of this Article Ten. Otherwise, any deposit of assets or securities by or on
behalf of the Company with the Trustee or any Paying Agent (whether or not in
trust) for the payment of principal of or interest on any Notes shall be subject
to the provisions of this Article Ten; provided, however, that if prior to the
second Business Day preceding the date on which by the terms of this Indenture
any such assets may become distributable for any purpose (including, without
limitation, the payment of either principal of or interest on any Note) the
Trustee or such Paying Agent shall not have received with respect to such assets
the notice provided for in Section 10.06, then the Trustee or such Paying Agent
shall have full power and authority to receive such assets and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary received by it on or after such
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date. The foregoing shall not apply to the Paying Agent if the Company or any
Subsidiary or Affiliate of the Company is acting as Paying Agent. Nothing
contained in this Section 10.07 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by this Article Ten.
SECTION 10.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.08, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place,
terms or time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 10.09. Holders Authorize Trustee To
Effectuate Subordination of Notes.
Each Holder of the Notes by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article Ten, and appoints the Trustee such Holder's
attorney-in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of the Company tending towards liquidation or
reorganization of the business and assets of the Company, the immediate filing
of a claim for the unpaid balance of such Holder's Notes in the form required in
said proceedings and cause said claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in such proceeding
prior to 30 days before the expiration of the time to file such claim or claims,
then any of the holders of the Senior Indebtedness or their Representative is
hereby authorized to file an appropriate claim for and on behalf of the Holders
of said Notes. Nothing herein contained shall be deemed to authorize the Trustee
or the holders
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of Senior Indebtedness or their Representative to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee or any such agent of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness.
Whenever a distribution is to be made or a notice given to holders
or owners of Senior Indebtedness, the distribution may be made and the notice
may be given to their Representative, if any.
SECTION 10.11. This Article Ten Not To
Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of a Default or an Event of Default.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Article Six or to pursue any rights or remedies hereunder
or under applicable law, subject to the rights, if any, under this Article Ten
of the holders, from time to time, of Senior Indebtedness.
SECTION 10.12. No Fiduciary Duty of Trustee to
Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and it undertakes to perform or observe such of
its covenants and obligations as are
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specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be liable to any such
holders (other than for its willful misconduct or gross negligence) if it shall
pay over or deliver to the Holders of Notes or the Company or any other Person
money or assets in compliance with the terms of this Indenture. Nothing in this
Section 10.12 shall affect the obligation of any Person other than the Trustee
to hold such payment for the benefit of, and to pay such payment over to, the
holders of Senior Indebtedness or their Representative.
ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01. Unconditional Guarantee.
Subject to the provisions of this Article Eleven, each Subsidiary
Guarantor hereby, jointly and severally, unconditionally and irrevocably
guarantees, on a senior subordinated basis (such guarantee to be referred to
herein as a "Guarantee") to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Notes or the obligations
of the Company or any other Subsidiary Guarantor hereunder or thereunder, that:
(a) the principal of, premium, if any, and interest on the Notes (and any
Additional Interest payable thereon) shall be duly and punctually paid in full
when due, whether at maturity, upon redemption at the option of Holders pursuant
to the provisions of the Notes relating thereto, by acceleration or otherwise,
and interest on the overdue principal and (to the extent permitted by law)
interest, if any, on the Notes and all other obligations of the Company or the
Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.07) and all other obligations
shall be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any
other obligation of the Company to the Holders under this Indenture or under the
Notes, for whatever reason, each Subsidiary Guarantor shall be obligated to pay,
or to perform or cause the performance of, the same immediately. An Event of
Default under this Indenture or the Notes shall constitute an event of default
under this Guarantee, and shall entitle the Holders of Notes to accelerate the
obligations of the Subsidiary Guarantors hereunder in the same manner and to the
same extent as the obligations of the Company.
Each of the Subsidiary Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Subsidiary
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Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular Note,
or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Subsidiary Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and this Guarantee. This Guarantee is a guarantee of payment and not
of collection. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or to any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or such Subsidiary Guarantor, any amount paid by the Company or such
Subsidiary Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor further agrees that, as between it, on the one hand,
and the Holders of Notes and the Trustee, on the other hand, (a) subject to this
Article Eleven, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article Six
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Subsidiary Guarantors for the purpose of this Guarantee.
No stockholder, officer, director, employee or incorporator, past,
present or future, of any Subsidiary Guarantor, as such, shall have any personal
liability under this Guarantee by reason of his, her or its status as such
stockholder, officer, director, employee or incorporator.
Each Subsidiary Guarantor that makes a payment or distribution under
its Guarantee shall be entitled to a contribution from each other Subsidiary
Guarantor in an amount pro rata, based on the net assets of each Subsidiary
Guarantor, determined in accordance with GAAP.
SECTION 11.02. Limitations on Guarantees.
The obligations of each Subsidiary Guarantor under its Guarantee
will be limited to the maximum amount which, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, will result in the obligations of such Subsidiary Guarantor
under its Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under any laws of the United States, any state of the United States or
the District of Columbia.
SECTION 11.03. Execution and Delivery of Guarantee.
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To further evidence the Guarantee set forth in Section 11.01, each
Subsidiary Guarantor hereby agrees that a notation of such Guarantee,
substantially in the form of Exhibit F hereto, shall be endorsed on each Note
authenticated and delivered by the Trustee. Such Guarantee shall be executed on
behalf of each Subsidiary Guarantor by either manual or facsimile signature of
two Officers of each Subsidiary Guarantor, each of whom, in each case, shall
have been duly authorized to so execute by all requisite corporate action. The
validity and enforceability of any Guarantee shall not be affected by the fact
that it is not affixed to any particular Note.
Each of the Subsidiary Guarantors hereby agrees that its Guarantee
set forth in Section 11.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Guarantee.
If an Officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, such Subsidiary Guarantor's Guarantee of such Note shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of each Subsidiary Guarantor.
SECTION 11.04. Release of a Subsidiary Guarantor.
(a) If no Default exists or would exist under this Indenture, upon
the sale or disposition of all of the Capital Stock of a Subsidiary Guarantor by
the Company or a Subsidiary of the Company in a transaction constituting an
Asset Sale the Net Cash Proceeds of which are applied in accordance with Section
4.15, or upon the consolidation or merger of a Subsidiary Guarantor with or into
any Person in compliance with Article Five (in each case, other than to the
Company or an Affiliate of the Company), or if any Subsidiary Guarantor is
dissolved or liquidated in accordance with this Indenture, such Subsidiary
Guarantor and each Subsidiary of such Subsidiary Guarantor that is also a
Subsidiary Guarantor shall be deemed released from all obligations under this
Article Eleven without any further action required on the part of the Trustee or
any Holder; provided, however, that each such Subsidiary Guarantor is sold or
disposed of in accordance with this Indenture. Any Subsidiary Guarantor not so
released or the entity surviving such Subsidiary Guarantor, as applicable, shall
remain or be liable under its Guarantee as provided in this Article Eleven.
(b) The Trustee shall deliver an appropriate instrument evidencing
the release of a Subsidiary Guarantor upon receipt of a request by the Company
or such Subsidiary Guarantor accompanied by an Officers' Certificate and an
Opinion of Counsel certifying as to the compliance with this Section 11.04,
provided the legal counsel delivering such Opinion of Counsel may rely as to
matters of fact on one or more Officers' Certificates.
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The Trustee shall execute any documents reasonably requested by the
Company or a Subsidiary Guarantor in order to evidence the release of such
Subsidiary Guarantor from its obligations under its Guarantee endorsed on the
Notes and under this Article Eleven.
Except as set forth in Articles Four and Five and this Section
11.04, nothing contained in this Indenture or in any of the Notes shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into the Company
or another Subsidiary Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another Subsidiary Guarantor.
SECTION 11.05. Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are
discharged and paid in full, each Subsidiary Guarantor hereby irrevocably waives
and agrees not to exercise any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of the Company's obligations under the Notes or this
Indenture and such Subsidiary Guarantor's obligations under this Guarantee and
this Indenture, in any such instance including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and any
right to participate in any claim or remedy of the Holders against the Company,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim
or other rights. If any amount shall be paid to any Subsidiary Guarantor in
violation of the preceding sentence and any amounts owing to the Trustee or the
Holders of Notes under the Notes, this Indenture, or any other document or
instrument delivered under or in connection with such agreements or instruments,
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Subsidiary Guarantor for the benefit of, and held in trust for
the benefit of, the Trustee or the Holders and shall forthwith be paid to the
Trustee for the benefit of itself or such Holders to be credited and applied to
the obligations in favor of the Trustee or the Holders, as the case may be,
whether matured or unmatured, in accordance with the terms of this Indenture.
Each Subsidiary Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 11.05 is knowingly made in contemplation of
such benefits.
SECTION 11.06. No Set-Off.
Each payment to be made by a Subsidiary Guarantor hereunder in
respect of the Obligations shall be payable in the currency or currencies in
which such Obligations are denominated, and shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
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SECTION 11.07. Obligations Absolute.
The obligations of each Subsidiary Guarantor hereunder are and shall
be absolute and unconditional and any monies or amounts expressed to be owing or
payable by each Subsidiary Guarantor hereunder which may not be recoverable from
such Subsidiary Guarantor on the basis of a Guarantee shall be recoverable from
such Subsidiary Guarantor as a primary obligor and principal debtor in respect
thereof.
SECTION 11.08. Obligations Continuing.
The obligations of each Subsidiary Guarantor hereunder shall be
continuing and shall remain in full force and effect until all the obligations
have been paid and satisfied in full. Each Subsidiary Guarantor agrees with the
Trustee that it will from time to time deliver to the Trustee suitable
acknowledgments of this continued liability hereunder and under any other
instrument or instruments in such form as counsel to the Trustee may advise and
as will prevent any action brought against it in respect of any default
hereunder being barred by any statute of limitations now or hereafter in force
and, in the event of the failure of a Subsidiary Guarantor so to do, it hereby
irrevocably appoints the Trustee the attorney and agent of such Subsidiary
Guarantor to make, execute and deliver such written acknowledgment or
acknowledgments or other instruments as may from time to time become necessary
or advisable, in the judgment of the Trustee on the advice of counsel, to fully
maintain and keep in force the liability of such Subsidiary Guarantor hereunder.
SECTION 11.09. Obligations Not Reduced.
The obligations of each Subsidiary Guarantor hereunder shall not be
satisfied, reduced or discharged solely by the payment of such principal,
premium, if any, interest, fees and other monies or amounts as may at any time
prior to discharge of this Indenture pursuant to Article 8 be or become owing or
payable under or by virtue of or otherwise in connection with the Notes or this
Indenture.
SECTION 11.10. Obligations Reinstated.
The obligations of each Subsidiary Guarantor hereunder shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any payment which would otherwise have reduced the obligations of any
Subsidiary Guarantor hereunder (whether such payment shall have been made by or
on behalf of the Company or by or on behalf of a Subsidiary Guarantor) is
rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy,
liquidation or reorganization of the Company or any Subsidiary Guarantor or
otherwise, all as though such payment had not been made. If demand for, or
acceleration of the time for, payment by the Company is stayed upon the
insolvency, bankruptcy, liquidation or reorganization of the Company, all such
Indebtedness otherwise subject to demand for payment or acceleration shall
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nonetheless be payable by each Subsidiary Guarantor as provided herein.
SECTION 11.11. Obligations Not Affected.
The obligations of each Subsidiary Guarantor hereunder shall not be
affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by any Subsidiary Guarantor
or any of the Holders) which, but for this provision, might constitute a whole
or partial defense to a claim against any Subsidiary Guarantor hereunder or
might operate to release or otherwise exonerate any Subsidiary Guarantor from
any of its obligations hereunder or otherwise affect such obligations, whether
occasioned by default of any of the Holders or otherwise, including, without
limitation:
(a) any limitation of status or power, disability, incapacity or
other circumstance relating to the Company or any other person, including any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding up or other proceeding involving or affecting the Company
or any other person;
(b) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Company or any other
person under this Indenture, the Notes or any other document or instrument;
(c) any failure of the Company, whether or not without fault on its
part, to perform or comply with any of the provisions of this Indenture or the
Notes, or to give notice thereof to a Subsidiary Guarantor;
(d) the taking or enforcing or exercising or the refusal or neglect
to take or enforce or exercise any right or remedy from or against the Company
or any other Person or their respective assets or the release or discharge of
any such right or remedy;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Company
or any other Person;
(f) any change in the time, manner or place of payment of, or in any
other term of, any of the Notes, or any other amendment, variation, supplement,
replacement or waiver of, or any consent to departure from, any of the Notes or
this Indenture, including, without limitation, any increase or decrease in the
principal amount of or premium, if any, or interest on any of the Notes;
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(g) any change in the ownership, control, name, objects, businesses,
assets, capital structure or constitution of the Company or a Subsidiary
Guarantor;
(h) any merger or amalgamation of the Company or a Subsidiary
Guarantor with any Person or Persons;
(i) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Obligations or the obligations of a Subsidiary Guarantor under its Guarantee;
and
(j) any other circumstance, including release of the Subsidiary
Guarantor pursuant to Section 11.04 (other than by complete, irrevocable
payment) that might otherwise constitute a legal or equitable discharge or
defense of the Company under this Indenture or the Notes or of a Subsidiary
Guarantor in respect of its Guarantee hereunder.
SECTION 11.12. Waiver.
Without in any way limiting the provisions of Section 11.01 hereof,
each Subsidiary Guarantor hereby waives notice of acceptance hereof, notice of
any liability of any Subsidiary Guarantor hereunder, notice or proof of reliance
by the Holders upon the obligations of any Subsidiary Guarantor hereunder, and
diligence, presentment, demand for payment on the Company, protest, notice of
dishonor or non-payment of any of the Obligations, or other notice or
formalities to the Company or any Subsidiary Guarantor of any kind whatsoever.
SECTION 11.13. No Obligation To Take
Action Against the Company.
Neither the Trustee nor any other Person shall have any obligation
to enforce or exhaust any rights or remedies or to take any other steps under
any security for the Obligations or against the Company or any other Person or
any property of the Company or any other Person before the Trustee is entitled
to demand payment and performance by any or all Subsidiary Guarantors of their
liabilities and obligations under their Guarantees or under this Indenture.
SECTION 11.14. Dealing with the Company and Others.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Subsidiary
Guarantor hereunder and without the consent of or notice to any Subsidiary
Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases,
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discharges and other indulgences to the Company or any other Person;
(b) take or abstain from taking security or collateral from the
Company or from perfecting security or collateral of the Company;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without consideration)
any and all collateral, mortgages or other security given by the Company or any
third party with respect to the obligations or matters contemplated by this
Indenture or the Notes;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or from
any security upon such part of the Obligations as the Holders may see fit or
change any such application in whole or in part from time to time as the Holders
may see fit; and
(f) otherwise deal with, or waive or modify their right to deal
with, the Company and all other Persons and any security as the Holders or the
Trustee may see fit.
SECTION 11.15. Default and Enforcement.
If any Subsidiary Guarantor fails to pay in accordance with Section
11.01 hereof, the Trustee may proceed in its name as trustee hereunder in the
enforcement of the Guarantee of any such Subsidiary Guarantor and such
Subsidiary Guarantor's obligations thereunder and hereunder by any remedy
provided by law, whether by legal proceedings or otherwise, and to recover from
such Subsidiary Guarantor the obligations.
SECTION 11.16. Amendment, Etc.
No amendment, modification or waiver of any provision of this
Indenture relating to any Subsidiary Guarantor or consent to any departure by
any Subsidiary Guarantor or any other Person from any such provision will in any
event be effective unless it is signed by such Subsidiary Guarantor and the
Trustee.
SECTION 11.17. Acknowledgment.
Each Subsidiary Guarantor hereby acknowledges communication of the
terms of this Indenture and the Notes and consents to and approves of the same.
SECTION 11.18. Costs and Expenses.
Each Subsidiary Guarantor shall pay on demand by the Trustee any and
all costs, fees
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and expenses (including, without limitation, legal fees) incurred by the
Trustee, its agents, advisors and counsel or any of the Holders in enforcing any
of their rights under any Guarantee.
SECTION 11.19. No Merger or Waiver; Cumulative Remedies.
No Guarantee shall operate by way of merger of any of the
obligations of a Subsidiary Guarantor under any other agreement, including,
without limitation, this Indenture. No failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right, remedy, power
or privilege hereunder or under this Indenture or the Notes, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder or under this Indenture or the Notes preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges in the Guarantee
and under this Indenture, the Notes and any other document or instrument between
a Subsidiary Guarantor and/or the Company and the Trustee are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 11.20. Survival of Obligations.
Without prejudice to the survival of any of the other obligations of
each Subsidiary Guarantor hereunder, the obligations of each Subsidiary
Guarantor under Section 11.01 shall survive the payment in full of the
Obligations and shall be enforceable against such Subsidiary Guarantor without
regard to and without giving effect to any defense, right of offset or
counterclaim available to or which may be asserted by the Company or any
Subsidiary Guarantor.
SECTION 11.21. Guarantee in Addition to Other Obligations.
The obligations of each Subsidiary Guarantor under its Guarantee and
this Indenture are in addition to and not in substitution for any other
obligations to the Trustee or to any of the Holders in relation to this
Indenture or the Notes and any guarantees or security at any time held by or for
the benefit of any of them.
SECTION 11.22. Severability.
Any provision of this Article Eleven which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and
purpose of this Indenture and this Article Eleven.
SECTION 11.23. Successors and Assigns.
Each Guarantee shall be binding upon and inure to the benefit of
each Subsidiary
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Guarantor and the Trustee and the other Holders and their respective successors
and permitted assigns, except that no Subsidiary Guarantor may assign any of its
obligations hereunder or thereunder.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Obligations of Guarantors Subordinated
to Guarantor Senior Indebtedness.
Anything herein to the contrary notwithstanding, each of the
Subsidiary Guarantors, for itself and its successors, and each Holder, by his or
her acceptance of Guarantees, agrees that the payment of all Obligations owing
to the Holders in respect of its Guarantee (collectively, as to any Subsidiary
Guarantor, its "Guarantee Obligations") is subordinated, to the extent and in
the manner provided in this Article Twelve, to the prior payment in full in cash
or Cash Instruments, or such payment duly provided for to the satisfaction of
the holders of Guarantor Senior Indebtedness, of all Obligations on Guarantor
Senior Indebtedness of such Subsidiary Guarantor, including without limitation,
the Subsidiary Guarantors' obligations under the Credit Agreement.
This Article Twelve shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Guarantor Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Guarantor Senior Indebtedness and such holders are made obligees hereunder and
any one or more of them may enforce such provisions.
SECTION 12.02. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness is in Default.
(a) No direct or indirect payment by or on behalf of any Subsidiary
Guarantor of Obligations on the Notes whether pursuant to the terms of the Notes
or upon acceleration or otherwise shall be made if, at the time of such payment,
there exists a default in the payment of all or any portion of principal of,
premium, if any, or interest on, any Designated Senior Indebtedness which
constitutes Guarantor Senior Indebtedness of such Subsidiary Guarantor (and the
Trustee has received written notice thereof), and such default shall not have
been cured or waived in writing or the benefits of this sentence waived in
writing by or on behalf of the holders of such Designated Senior Indebtedness.
In addition, if any other event of default occurs and is continuing with respect
to any Designated Senior Indebtedness which is Guarantor Senior Indebtedness, as
such event of default is defined in the instrument creating or evidencing such
Guarantor Senior Indebtedness, permitting the holders of such Guarantor Senior
Indebtedness then outstanding to accelerate the maturity thereof and if the
Representative for the respective issue of Guarantor Senior Indebtedness gives
notice of the event of default to the Trustee (a
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"Default Notice"), then, unless and until all events of default have been cured
or waived in writing or have ceased to exist or the Trustee receives notice
thereof from the Representative for the respective issue of Guarantor Senior
Indebtedness terminating the Blockage Period (as defined below), during the 180
days after the delivery of such Default Notice (the "Blockage Period"), neither
any Subsidiary Guarantor nor any other Person on its behalf shall (x) make any
payment of any kind or character with respect to any Obligations on the Notes or
(y) acquire any of the Notes for cash or property or otherwise. Notwithstanding
anything herein to the contrary, in no event will a Blockage Period extend
beyond 180 days from the date the payment on the Notes was due and only one such
Blockage Period may be commenced within any 360 consecutive days. No event of
default which existed or was continuing on the date of the commencement of any
Blockage Period with respect to the Designated Senior Indebtedness shall be, or
be made, the basis for commencement of a second Blockage Period by the
Representative of such Designated Senior Indebtedness whether or not within a
period of 360 consecutive days, unless such event of default shall have been
cured or waived in writing for a period of not less than 90 consecutive days (it
being acknowledged that any subsequent action, or any breach of any of the
financial covenants for a new accounting period commencing after the date of
such Blockage Period that, in either case, would give rise to an event of
default pursuant to any provisions under which an event of default previously
existed or was continuing shall constitute a new event of default for this
purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 12.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Designated Senior
Indebtedness of a Subsidiary Guarantor (pro rata to such holders on the basis of
the respective amounts of Designated Senior Indebtedness held by such holders)
or such holders' respective Representatives upon written instruction of the
Company or a court of competent jurisdiction. The Trustee shall be entitled to
rely on written information regarding amounts then due and owing on the
Designated Senior Indebtedness of a Subsidiary Guarantor, if any, received from
the Company and only amounts included in the information provided to the Trustee
shall be paid to the holders of such Designated Senior Indebtedness.
Nothing contained in this Article Twelve shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Guarantor Senior Indebtedness thereafter
due or declared to be due shall first be paid in full in cash or Cash
Instruments before the Holders are entitled to receive any payment of any kind
or character with respect to Obligations on the Notes.
SECTION 12.03. Guarantee Obligations Subordinated to Prior
Payment of All Guarantor Senior Indebtedness
on Dissolution, Liquidation or Reorganization
of Such Subsidiary Guarantor.
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Upon any payment or distribution of assets of any Subsidiary
Guarantor of any kind or character, whether in cash, property or securities to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of such
Subsidiary Guarantor, whether voluntary or involuntary, or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
any Subsidiary Guarantor or its property, whether voluntary or involuntary, but
excluding any liquidation or dissolution of a Subsidiary Guarantor into the
Company or into another Subsidiary Guarantor:
(a) the holders of all Guarantor Senior Indebtedness of such
Subsidiary Guarantor shall first be entitled to receive payments in full in cash
or Cash Instruments, or such payment duly provided for to the satisfaction of
the holders of Guarantor Senior Indebtedness, of all amounts payable under
Guarantor Senior Indebtedness before the Holders will be entitled to receive any
payment or distribution of any kind or character on account of the Guarantee of
such Subsidiary Guarantor, and until all Obligations with respect to the
Guarantor Senior Indebtedness are paid in full in cash or Cash Instruments, or
such payment duly provided for to the satisfaction of the holders of Guarantor
Senior Indebtedness, any distribution to which the Holders would be entitled
shall be made to the holders of Guarantor Senior Indebtedness of such Subsidiary
Guarantor;
(b) any payment or distribution of assets of such Subsidiary
Guarantor of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be entitled
except for the provisions of this Article Twelve shall be paid by the
liquidating trustee or agent or other Person making such a payment or
distribution, directly to the holders of Guarantor Senior Indebtedness of such
Subsidiary Guarantor or their Representatives, ratably according to the
respective amounts of such Guarantor Senior Indebtedness remaining unpaid held
or represented by each, until all such Guarantor Senior Indebtedness remaining
unpaid shall have been paid in full in cash or Cash Instruments, or such payment
duly provided for to the satisfaction of the holders of Guarantor Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Guarantor Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of such Subsidiary Guarantor of any kind or character,
whether such payment shall be in cash, property or securities, and such
Subsidiary Guarantor shall have made payment to the Trustee or directly to the
Holders or any Paying Agent in respect of payment of the Guarantees before all
Guarantor Senior Indebtedness of such Subsidiary Guarantor is paid in full in
cash or Cash Instruments, or such payment duly provided for to the satisfaction
of the holders of Guarantor Senior Indebtedness, such payment or distribution
(subject to the provisions of Sections 12.06 and 12.07) shall be received,
segregated from other funds, and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of, and shall immediately be paid over by the
Trustee (if the notice required by Section 12.06 has been received by the
Trustee) or by the Holder to, the holders of such Guarantor Senior Indebtedness
or their representatives, ratably
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according to the respective amounts of such Guarantor Senior Indebtedness held
or represented by each, until all such Guarantor Senior Indebtedness remaining
unpaid shall have been paid in full in cash or Cash Instruments, or such payment
duly provided for to the satisfaction of the holders of Guarantor Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of Guarantor Senior Indebtedness.
Each Subsidiary Guarantor shall give prompt notice to the Trustee
prior to any dissolution, winding-up, total or partial liquidation or total or
reorganization (including, without limitation, in bankruptcy, insolvency, or
receivership proceedings or upon any assignment for the benefit of creditors or
any other marshaling of such Subsidiary Guarantor's assets and liabilities).
SECTION 12.04. Holders of Guarantee Obligations To
Be Subrogated to Rights of Holders
of Guarantor Senior Indebtedness.
Subject to the payment in full in cash or Cash Instruments, or such
payment duly provided for to the satisfaction of the holders of Guarantor Senior
Indebtedness, of all Guarantor Senior Indebtedness, the Holders of Guarantee
Obligations of a Subsidiary Guarantor shall be subrogated to the rights of the
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor to receive
payments or distributions of assets of such Subsidiary Guarantor applicable to
such Guarantor Senior Indebtedness until all amounts owing on or in respect of
the Guarantee Obligations shall be paid in full in cash or Cash Instruments, and
for the purpose of such subrogation no payments or distributions to the holders
of such Guarantor Senior Indebtedness by or on behalf of such Subsidiary
Guarantor, or by or on behalf of the Holders by virtue of this Article Twelve,
which otherwise would have been made to the Holders shall, as between such
Subsidiary Guarantor and the Holders, be deemed to be payment by such Subsidiary
Guarantor to or on account of such Guarantor Senior Indebtedness, it being
understood that the provisions of this Article Twelve are and are intended
solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of such Guarantor Senior Indebtedness, on the other
hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Twelve shall have been
applied, pursuant to the provisions of this Article Twelve, to the payment of
all amounts payable under such Guarantor Senior Indebtedness, then the Holders
shall be entitled to receive from the holders of such Guarantor Senior
Indebtedness any such payments or distributions received by such holders of such
Guarantor Senior Indebtedness in excess of the amount sufficient to pay all
amounts payable under or in respect of such Guarantor Senior Indebtedness in
full in cash or Cash Instruments, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Indebtedness.
Each Holder by purchasing or accepting a Note waives any and all
notice of the creation,
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modification, renewal, extension or accrual of any Guarantor Senior Indebtedness
of the Subsidiary Guarantors and notice of or proof of reliance by any holder or
owner of Guarantor Senior Indebtedness of the Subsidiary Guarantors upon this
Article Twelve and the Guarantor Senior Indebtedness of the Subsidiary
Guarantors shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Article Twelve, and all dealings between the
Subsidiary Guarantors and the holders and owners of the Guarantor Senior
Indebtedness of the Subsidiary Guarantors shall be deemed to have been
consummated in reliance upon this Article Twelve.
SECTION 12.05. Obligations of the Subsidiary
Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as between the
Subsidiary Guarantors and the Holders, the obligation of the Subsidiary
Guarantors, which is absolute and unconditional, to pay to the Holders all
amounts due and payable under the Guarantees as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Subsidiary
Guarantors other than the holders of Guarantor Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Twelve, of the
holders of Guarantor Senior Indebtedness in respect of cash, property or
securities of the Subsidiary Guarantors received upon the exercise of any such
remedy. Upon any payment or distribution of assets of any Subsidiary Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which any liquidation,
dissolution, winding-up or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee or agent
or other Person making any payment or distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Guarantor Senior Indebtedness and
other Indebtedness of any Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve. Nothing in this Article Twelve
shall apply to the claims of, or payments to, the Trustee under or pursuant to
Section 7.07. 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
Guarantor Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Guarantor Senior Indebtedness or a trustee or representative on
behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Guarantor
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Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Guarantor Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Twelve, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 12.06. Trustee Entitled To Assume Payments
Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until the Trustee or any Paying Agent shall have received
notice thereof from the Company or any Subsidiary Guarantor or from one or more
holders of Guarantor Senior Indebtedness or from any Representative therefor
and, prior to the receipt of any such notice, the Trustee, subject to the
provisions of Sections 7.01 and 7.02, shall be entitled in all respects
conclusively to assume that no such fact exists.
SECTION 12.07. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Sections 8.01 and 8.02 shall
be for the sole benefit of Holders of the Notes and, to the extent allocated for
the payment of Notes, shall not be subject to the subordination provisions of
this Article Twelve. Otherwise, any deposit of assets or securities by or on
behalf of a Subsidiary Guarantor with the Trustee or any Paying Agent (whether
or not in trust) for payment of the Guarantees shall be subject to the
provisions of this Article Twelve; provided, however, that if prior to the
second Business Day preceding the date on which by the terms of this Indenture
any such assets may become distributable for any purpose (including, without
limitation, the payment of either principal of or interest on any Note) the
Trustee or such Paying Agent shall not have received with respect to such assets
the notice provided for in Section 12.06, then the Trustee or such Paying Agent
shall have full power and authority to receive such assets and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary received by it on or after such date. The foregoing shall
not apply to the Paying Agent if the Company or any Subsidiary or Affiliate of
the Company is acting as Paying Agent. Nothing contained in this Section 12.07
shall limit the right of the holders of Guarantor Senior Indebtedness to recover
payments as contemplated by this Article Twelve.
SECTION 12.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Subsidiary Guarantor or by any act or failure to act, by any such holder, or
by any non-compliance by any Subsidiary Guarantor with the terms,
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provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 12.08, the holders of Guarantor Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Notes, without incurring responsibility to the Holders of the
Notes and without impairing or releasing the subordination provided in this
Article Twelve or the obligations hereunder of the Holders of the Notes to the
holders of Guarantor Senior Indebtedness, do any one or more of the following:
(1) change the manner, place, terms or time of payment of, or renew or alter,
Guarantor Senior Indebtedness or any instrument evidencing the same or any
agreement under which Guarantor Senior Indebtedness is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Guarantor Senior Indebtedness; (3) release any Person liable
in any manner for the collection or payment of Guarantor Senior Indebtedness;
and (4) exercise or refrain from exercising any rights against the Subsidiary
Guarantors and any other Person.
SECTION 12.09. Holders Authorize Trustee To Effectuate
Subordination of Guarantee Obligations.
Each Holder of the Guarantee Obligations by its acceptance thereof
authorizes and expressly directs the Trustee on its behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article Twelve, and appoints the Trustee its attorney-in-fact
for such purpose, including, in the event of any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of any Subsidiary Guarantor tending towards liquidation or
reorganization of the business and assets of any Subsidiary Guarantor, the
immediate filing of a claim for the unpaid balance under its or his Guarantee
Obligations in the form required in said proceedings and cause said claim to be
approved. If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then any of the holders of the Guarantor
Senior Indebtedness or their Representative is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Guarantee
Obligations. Nothing herein contained shall be deemed to authorize the Trustee
or the holders of Guarantor Senior Indebtedness or their Representative to
authorize or consent to or accept or adopt on behalf of any holder of Guarantee
Obligations any plan of reorganization, arrangement, adjustment or composition
affecting the Guarantee Obligations or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Guarantor Senior Indebtedness or their
Representative to vote in respect of the claim of any holder of Guarantee
Obligations in any such proceeding.
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SECTION 12.10. Right of Trustee to Hold
Guarantor Senior Indebtedness.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Twelve with respect to any
Guarantor Senior Indebtedness which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of
Guarantor Senior Indebtedness and nothing in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of Guarantor Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior
Indebtedness.
Whenever a distribution is to be made or a notice given to holders
or owners of Guarantor Senior Indebtedness, the distribution may be made and the
notice may be given to their Representative, if any.
SECTION 12.11. No Suspension of Remedies.
The failure to make a payment in respect of the Guarantees by reason
of any provision of this Article Twelve shall not be construed as preventing the
occurrence of a Default or an Event of Default.
Nothing contained in this Article Twelve shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article Six or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Twelve of the holders, from time to time, of Guarantor Senior
Indebtedness.
SECTION 12.12. No Fiduciary Duty of Trustee to
Holders of Guarantor Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness, and it undertakes to perform or
observe such of its covenants and obligations as are specifically set forth in
this Article Twelve, and no implied covenants or obligations with respect to the
Guarantor Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be liable to any such holders (other than for its
willful misconduct or gross negligence) if it shall pay over or deliver to the
holders of Guarantee Obligations or the Guarantors or any other Person, money or
assets in compliance with the terms of this Indenture. Nothing in this Section
12.12 shall affect the obligation of any Person other than the Trustee to hold
such payment for the benefit of, and to pay such payment over to, the holders of
Guarantor Senior Indebtedness or their Representative.
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA 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; provided, however, that this Section
13.01 shall not of itself require that this Indenture or the Trustee be
qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
SECTION 13.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or overnight courier guaranteeing next-day delivery or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company or any Subsidiary Guarantor:
GENERAL BINDING CORPORATION
One GBC Plaza
Northbrook, Illinois 60062
Telecopier Number: (847) 272-4763
Attn: Treasurer
with a copy to:
GENERAL BINDING CORPORATION
One GBC Plaza
Northbrook, Illinois 60062
Telecopier Number: (847) 272-4763
Attn: Vice President, Secretary and General Counsel
if to the Trustee:
FIRST UNION NATIONAL BANK
Corporate Trust Department - 9th Floor
230 N. Tryon Street
Charlotte, North Carolina 28288-1179
Telecopier Number: (704) 383-7316
Attention: Corporate Trust Department
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Each of the Company and the Trustee by written notice to the other
may designate additional or different addresses for notices to such Person. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if hand delivered; when receipt
is acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Holder shall be mailed by
first class mail, certified or registered return receipt requested, or by
overnight courier guaranteeing next-day delivery to its address as it appears on
the registration books of the Registrar. Any notice or communication shall be
mailed to any Person as described in TIA Section 313(c), to the extent required
by the TIA.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of 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 any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Company, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, if any,
provided for in this Indenture relating to the proposed action have been
complied with (which counsel, as to factual matters, may rely on an Officers'
Certificate).
SECTION 13.05. Statements Required in Certificate or Opinion.
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Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably 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 each such
Person, such condition or covenant has been complied with.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 13.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York, Charlotte, North Carolina or at such place of payment are not required to
be open. If a payment date is a Legal Holiday at such place, payment may be made
at such place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 13.08. Governing Law.
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
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This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. No Personal Liability.
No director, officer, employee or stockholder, as such, of the
Company or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Notes, this
Indenture, the Guarantees or the Registration Rights Agreement or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Notes.
SECTION 13.11. Successors.
All agreements of the Company in this Indenture and the Notes shall
bind their successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture in one
or more counterparts. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
GENERAL BINDING CORPORATION
By: /s/ STEVEN RUBIN
---------------------------------------
Name:
Title: Vice President, Secretary and
General Counsel
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BAKER SCHOOL SPECIALTY COMPANY, INC.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President, Secretary and
Clerk
GBC BUSINESS EQUIPMENT, INC.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
GBC INDIA HOLDINGS, INC.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
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GBC INTERNATIONAL, INC.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
GBC METALS CORP.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
PRO-TECH ENGINEERING CO., INC.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
SICKINGER COMPANY,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
U.S. RING BINDER CORP.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President, Secretary and
Clerk
VELOBIND INCORPORATED,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
---------------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
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IBICO, INC.,
as a Subsidiary Guarantor
By: /s/ STEVEN RUBIN
-----------------------------------
Name: Steven Rubin
Title: Vice President and Secretary
FIRST UNION NATIONAL BANK
as Trustee
By: /s/ SHANNON SCHWARTZ
-----------------------------------
Name: Shannon Schwartz
Title: Assistant Vice President
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EXHIBIT A
FORM OF INITIAL NOTE
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY, RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501 (a) (1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF
THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.]
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CUSIP No.: ______________
GENERAL BINDING CORPORATION
9 3/8% SENIOR SUBORDINATED NOTE DUE 2008
No. _________ $__________
GENERAL BINDING CORPORATION, a Delaware corporation (the "Company," which
term includes any successor entities), for value received promises to pay to
_________ or registered assigns the principal sum of __________ Dollars on June
1, 2008.
Interest Payment Dates: June 1 and December 1, commencing December 1,
1998.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
GENERAL BINDING CORPORATION
By:________________________________
Name:_____________________________
Title:______________________________
By:________________________________
Name:_____________________________
Title:______________________________
Dated: May 27, 1998
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Certificate of Authentication
This is one of the ____% Senior Subordinated Notes due 2008, referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By:
Authorized Signatory
Date of Authentication:__________, 1998
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(REVERSE OF SECURITY)
____% Senior Subordinated Note due 2008
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Indenture, dated as of May ___, 1998 (the
"Indenture"), and as amended from time to time, by and among General Binding
Corporation, a Delaware corporation (the "Company"), the Subsidiary Guarantors
named therein and First Union National Bank, as trustee (the "Trustee").
1. Interest. The Company promises to pay interest on the principal amount
of this Note at the rate per annum shown above. Interest on the Notes will
accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from May 27, 1998. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing December 1,
1998. Interest will be computed on the basis of a 360-day year of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Notes are cancelled on registration of transfer or registration of
exchange (including pursuant to an Exchange Offer) after such Record Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and premium, if any, and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, the Company may pay
principal and premium, if any, and interest by check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment to the Paying Agent
or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders.
4. Indenture. The Company issued the Notes under the Indenture. This Note
is one of a duly authorized issue of Notes of the Company designated as its
____% Senior Subordinated Notes due 2008 issued on the Issue Date (the
"Initial Notes"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $225,000,000 which may be issued under the
Indenture. The Notes include the Initial Notes, the Private Exchange Notes and
the Unrestricted Notes, as defined below, issued in exchange for the Initial
Notes pursuant to the Registration Rights
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Agreement or, with respect to Initial Notes issued after the Issue Date
pursuant to Section 2.02 of the Indenture, a registration rights agreement
substantially identical to the Registration Rights Agreement. The Initial
Notes, the Private Exchange Notes and the Unrestricted Notes are treated as a
single class of securities under the Indenture. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture. Notwithstanding anything to
the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of such terms.
The Notes are general unsecured obligations of the Company. Payment on each
Note is guaranteed on a senior subordinated basis by the Subsidiary Guarantors
pursuant to Article 11 of the Indenture. Each Holder, by accepting a Note,
agrees to be bound by all of the terms and provisions of the Indenture, as the
same may be amended from time to time in accordance with its terms.
5. Redemption. (a) The Notes are redeemable, at the Company's option, in
whole at any time or in part from time to time, on and after June 1, 2003, upon
not less than 30 nor more than 60 days' notice, at the following Redemption
Prices (expressed as percentages of the principal amount thereof) if redeemed
during the twelve-month period commencing on June 1 of the years set forth
below, plus, in each case, accrued and unpaid interest thereon, if any, to the
date of redemption:
Year Percentage
---- ----------
2003............................................ 104.688%
2004............................................ 103.125%
2005............................................ 101.563%
2006............................................ 100.000%
(b) Notwithstanding the foregoing, at any time, or from time to time, on
or prior to June 1, 2001, the Company may, at its option, redeem up to 35% of
the aggregate principal amount of the Notes originally issued with the net cash
proceeds of one or more Public Equity Offerings at a redemption price equal to
109.375% of the principal amount thereof plus accrued and unpaid interest to
the date of redemption, provided, however, that at least 65% of the aggregate
principal amount of the Notes originally issued remains outstanding immediately
following such redemption. In order to effect the foregoing redemption with
the proceeds of any Public Equity Offering, the Company shall make such
redemption not more than 120 days after the consummation of any such Public
Equity Offering.
6. Notice of Redemption. Notice of redemption will be mailed at least 30
but not more than 60 days before the Redemption Date to each Holder of Notes to
be redeemed at its registered address. Notes in denominations larger than
$1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of the
Notes called for redemption shall have been deposited with the Trustee or
Paying Agent for redemption on such Redemption Date, then, unless the Company
defaults in the payment of such Redemption Price plus
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accrued interest, if any, the Notes called for redemption will cease to bear
interest from and after such Redemption Date and the only right of the Holders
of such Notes will be to receive payment of the Redemption Price plus accrued
interest, if any, to the Redemption Date.
7. Offers to Purchase. Section 4.14 of the Indenture provides that upon
a Change of Control each Holder will have the right, subject to certain
conditions set forth in the Indenture, to require the Company to purchase all
or a portion of such Holder's Notes at a price equal to 101% of the principal
amount thereof plus accrued and unpaid interest to the date of purchase.
Section 4.15 of the Indenture provides that, after certain Asset Sales, and
subject to further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
8. Registration Rights. Pursuant to the Registration Rights Agreement
among the Company, the Subsidiary Guarantors and the Initial Purchasers, the
Company and the Subsidiary Guarantors will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right
to exchange this Note for the Company's 9 3/8% Senior Subordinated Notes due
2008 (the "Unrestricted Notes"), which will be registered under the Securities
Act, in like principal amount and having terms identical in all material
respects as the Initial Notes. The Holders of the Initial Notes shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. Denominations; Transfer; Exchange. The Notes are in registered form,
without coupons, and in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as required by law or as permitted by the Indenture. The Registrar
need not register the transfer of or exchange of any Notes or portions thereof
selected for redemption during a period beginning 15 days before the mailing of
a redemption notice, except for the unredeemed portion of any Note being
redeemed in part.
10. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee and the Paying Agent will pay the
money back to the Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the Company at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the
Indenture
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and the Notes (including certain covenants, but excluding its obligation to pay
the principal of, premium and interest on the Notes).
13. Amendment; Supplement; Waiver. Subject to certain exceptions set
forth in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, and any past Default
or Event of Default or noncompliance with any provision may be waived with the
written consent of the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding. Without notice to or consent of
any Holder, the parties thereto may amend or supplement the Indenture or the
Notes to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Notes in addition to or in place of certificated
Notes, comply with any requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the TIA or comply with
Article Five of the Indenture or make any other change that does not adversely
affect the rights of any Holder of a Note in any material respect.
14. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain indebtedness, make certain Investments, create or incur Liens,
enter into transactions with Affiliates, create dividend or other payment
restrictions affecting the Company's Restricted Subsidiaries, issue Preferred
Stock of certain of its Restricted Subsidiaries, and on the ability of the
Company and the Subsidiary Guarantors to merge or consolidate with any other
Person or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the Company's and its Subsidiaries' assets or adopt a plan
of liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. Subordination. The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Instruments of all Obligations on Senior Indebtedness and
Guarantor Senior Indebtedness, whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed or guaranteed. Each Holder by its
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on its behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee its attorney-in-fact for such purposes.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor, subject to certain exceptions, will be released
from those obligations.
17. Defaults and Remedies. Except as set forth in the Indenture, if an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of Notes then outstanding may declare all the
Notes to be due and payable in the manner, at the time and with the effect
provided in the Indenture. Holders of Notes may not enforce the Indenture or
the Notes except
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as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Notes unless it has been offered indemnity or security
reasonably satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of
any continuing Default or Event of Default (except a Default in payment of
principal or interest when due (for any reason) or a Default in compliance with
Article Five of the Indenture) if it determines that withholding notice is in
their interest.
18. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No partner, director, officer, employee
or stockholder, as such, of the Company or any Subsidiary Guarantor, as such,
shall have any liability for any obligations of the Company or any Subsidiary
Guarantor under the Notes, the Indenture, the Guarantees or the Registration
Rights Agreement or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
20. Guarantees. This Note will be entitled to the benefits of certain
Guarantees made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Subsidiary Guarantors, the Trustee and
the Holders.
21. Authentication. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
22. Governing Law. This Note and the Indenture shall be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto and the Holders
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Note.
23. Abbreviations and Defined Terms. Customary abbreviations may be used
in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to
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the accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which has the text of this Note.
Requests may be made to: GENERAL BINDING CORPORATION, One GBC Plaza,
Northbrook, Illinois 60062, Attention: Vice President, Secretary and General
Counsel.
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
______________________________________
______________________________________________________________________________
(please print or type name and address)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
______________________________________________________________________________
attorney to transfer the Note on the books of the Company with full power of
substitution in the premises.
Dated:_________________ __________________________________________
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever.
Signature Guarantee:__________________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
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In connection with any transfer of this Note occurring prior to the date
of the declaration by the Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act")
covering resales of this Note (which effectiveness shall not have been
suspended or terminated at the date of the transfer), the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer:
[Check One]
(1) _____ to the Company or a subsidiary thereof; or
(2) _____ pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(3) _____ to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended) that has
furnished to the Trustee a signed letter containing
certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) _____ outside the United States to a "foreign purchaser"
in compliance with Rule 904 of Regulation S under
the Securities Act of 1933, as amended; or
(5) _____ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act of 1933, as
amended; or
(6) _____ pursuant to an effective registration statement
under the Securities Act of 1933, as amended; or
(7) _____ pursuant to another available exemption from the
registration statement requirements of the
Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
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Unless one of the items is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if item (3), (4),
(5) or (7) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Notes, in its sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3) or (4)), and other information as the Trustee or the Company
have reasonably requested to confirm that such transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar shall
not be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated:____________ Signed: __________________________________________
(Sign exactly as name appears on the other
side of this Note)
Signature Guarantee:_________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:______________ ________________________________________________
NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.14 or Section 4.15 of the Indenture, check the appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state the
amount: $____________
Date:__________________ Your Signature:______________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:___________________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by
the Trustee in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934,
as amended.
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EXHIBIT B
FORM OF EXCHANGE NOTE
CUSIP No.: ______________
GENERAL BINDING CORPORATION
9 3/8% SENIOR SUBORDINATED NOTE DUE 2008
No. _________ $__________
GENERAL BINDING CORPORATION, a Delaware corporation (the "Company," which
term includes any successor entities), for value received promises to pay to
_________ or registered assigns the principal sum of __________ Dollars on June
1, 2008.
Interest Payment Dates: June 1 and December 1, commencing December 1, 1998.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
GENERAL BINDING CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Dated: __________, 1998
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Certificate of Authentication
This is one of the 9 3/8% Senior Subordinated Notes due 2008, referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By:
Authorized Signatory
Date of Authentication:__________, 1998
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(REVERSE OF SECURITY)
9 3/8% Senior Subordinated Note due 2008
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Indenture, dated as of May 27, 1998 (the
"Indenture"), and as amended from time to time, by and among General Binding
Corporation, a Delaware corporation (the "Company"), the Subsidiary Guarantors
named therein and First Union National Bank, as trustee (the "Trustee").
1. Interest. The Company promises to pay interest on the principal amount
of this Note at the rate per annum shown above. Interest on the Notes will
accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from May 27, 1998. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing December 1,
1998. Interest will be computed on the basis of a 360-day year of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Notes are cancelled on registration of transfer or registration of
exchange (including pursuant to an Exchange Offer) after such Record Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and premium, if any, and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, the Company may pay
principal and premium, if any, and interest by check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment to the Paying Agent
or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders.
4. Indenture. The Company issued the Notes under the Indenture. This Note
is one of a duly authorized issue of Notes of the Company designated as its 9
3/8% Senior Subordinated Notes due 2008, limited (except as otherwise provided
in the Indenture) in aggregate principal amount to $225,000,000 which may be
issued under the Indenture. The Notes include the 9 3/8% Senior Subordinated
Notes due 2008 issued on the Issue Date (the "Initial Notes"), the Private
Exchange Notes and the Unrestricted Notes, as defined below, issued in exchange
for the Initial
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Notes pursuant to the Registration Rights Agreement or, with respect to Initial
Notes issued after the Issue Date pursuant to Section 2.02 of the Indenture, a
registration rights agreement substantially identical to the Registration
Rights Agreement. The Initial Notes, the Private Exchange Notes and the
Unrestricted Notes are treated as a single class of securities under the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture. Notwithstanding anything to the contrary herein, the Notes
are subject to all such terms, and Holders of Notes are referred to the
Indenture and the TIA for a statement of such terms. The Notes are general
unsecured obligations of the Company. Payment on each Note is guaranteed on a
senior subordinated basis by the Subsidiary Guarantors pursuant to Article 11
of the Indenture. Each Holder, by accepting a Note, agrees to be bound by all
of the terms and provisions of the Indenture, as the same may be amended from
time to time in accordance with its terms.
5. Redemption. (a) The Notes are redeemable, at the Company's option, in
whole at any time or in part from time to time, on and after June 1, 2003, upon
not less than 30 nor more than 60 days' notice, at the following Redemption
Prices (expressed as percentages of the principal amount thereof) if redeemed
during the twelve-month period commencing on June 1 of the years set forth
below, plus, in each case, accrued and unpaid interest thereon, if any, to the
date of redemption:
Year Percentage
- ---- ----------
2003....................................... 104.688%
2004....................................... 103.125%
2005....................................... 101.563%
2006....................................... 100.000%
(b) Notwithstanding the foregoing, at any time, or from time to time, on
or prior to June 1, 2001, the Company may, at its option, redeem up to 35% of
the aggregate principal amount of the Notes originally issued with the net cash
proceeds of one or more Public Equity Offerings at a redemption price equal to
109.375% of the principal amount thereof plus accrued and unpaid interest to
the date of redemption, provided, however, that at least 65% of the aggregate
principal amount of the Notes originally issued remains outstanding immediately
following such redemption. In order to effect the foregoing redemption with
the proceeds of any Public Equity Offering, the Company shall make such
redemption not more than 120 days after the consummation of any such Public
Equity Offering.
6. Notice of Redemption. Notice of redemption will be mailed at least 30
but not more than 60 days before the Redemption Date to each Holder of Notes to
be redeemed at its registered address. Notes in denominations larger than
$1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of the
Notes called for redemption shall have been deposited with the Trustee or
Paying Agent for redemption on such Redemption Date, then, unless the Company
defaults in the payment of such Redemption Price plus
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accrued interest, if any, the Notes called for redemption will cease to bear
interest from and after such Redemption Date and the only right of the Holders
of such Notes will be to receive payment of the Redemption Price plus accrued
interest, if any, to the Redemption Date.
7. Offers to Purchase. Section 4.14 of the Indenture provides that upon
a Change of Control each Holder will have the right, subject to certain
conditions set forth in the Indenture, to require the Company to purchase all
or a portion of such Holder's Notes at a price equal to 101% of the principal
amount thereof plus accrued and unpaid interest to the date of purchase.
Section 4.15 of the Indenture provides that, after certain Asset Sales, and
subject to further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
8. Denominations; Transfer; Exchange. The Notes are in registered form,
without coupons, and in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as required by law or as permitted by the Indenture. The Registrar
need not register the transfer of or exchange of any Notes or portions thereof
selected for redemption during a period beginning 15 days before the marking of
a redemption notice, except for the unredeemed portion of any Note being
redeemed in part.
9. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee and the Paying Agent will pay the
money back to the Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity. If the Company at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of, premium and interest on the Notes).
12. Amendment; Supplement; Waiver. Subject to certain exceptions set
forth in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, and any past Default
or Event of Default or noncompliance with any provision may be waived with the
written consent of the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding. Without notice to or consent of
any Holder, the parties thereto may amend or supplement the Indenture or the
Notes to, among other things, cure any ambiguity, defect or
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inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes, comply with any requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA or comply
with Article Five of the Indenture or make any other change that does not
adversely affect the rights of any Holder of a Note in any material respect.
13. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain indebtedness, make certain Investments, create or incur Liens,
enter into transactions with Affiliates, create dividend or other payment
restrictions affecting the Company's Restricted Subsidiaries, issue Preferred
Stock of certain of its Restricted Subsidiaries, and on the ability of the
Company and the Subsidiary Guarantors to merge or consolidate with any other
Person or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the Company's and its Subsidiaries' assets or adopt a plan
of liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
14. Subordination. The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Instruments of all Obligations on Senior Indebtedness and
Guarantor Senior Indebtedness, whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed or guaranteed. Each Holder by its
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on its behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee its attorney-in-fact for such purposes.
15. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor, subject to certain exceptions, will be released
from those obligations.
16. Defaults and Remedies. Except as set forth in the Indenture, if an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of Notes then outstanding may declare all the
Notes to be due and payable in the manner, at the time and with the effect
provided in the Indenture. Holders of Notes may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has been offered indemnity or
security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest when due (for any reason) or a Default in
compliance with Article Five of the Indenture) if it determines that
withholding notice is in their interest.
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17. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No partner, director, officer, employee
or stockholder, as such, of the Company or any Subsidiary Guarantor, as such,
shall have any liability for any obligations of the Company or any Subsidiary
Guarantor under the Notes, the Indenture, the Guarantees or the Registration
Rights Agreement or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
19. Guarantees. This Note will be entitled to the benefits of certain
Guarantees made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Subsidiary Guarantors, the Trustee and
the Holders.
20. Authentication. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
21. Governing Law. This Note and the Indenture shall be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto and the Holders
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Note.
22. Abbreviations and Defined Terms. Customary abbreviations may be used
in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which has the text of this Note.
Requests may be made to: GENERAL BINDING CORPORATION, One GBC Plaza,
Northbrook, Illinois 60062, Attention: Vice President, Secretary and General
Counsel.
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
______________________________________
______________________________________________________________________________
(please print or type name and address)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
______________________________________________________________________________
attorney to transfer the Note on the books of the Company with full power of
substitution in the premises.
Dated:_________________ __________________________________________
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever.
Signature Guarantee:__________________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.14 or Section 4.15 of the Indenture, check the appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state the
amount: $____________
Date:__________________ Your Signature: ______________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:___________________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by
the Trustee in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934,
as amended.
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EXHIBIT C
FORM OF LEGEND FOR GLOBAL NOTE
Any Global Note authenticated and delivered hereunder shall bear a legend
(which would be in addition to any other legends required in the case of a
Restricted Note) in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT THEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE.
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EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
Transfers To Non-QIB Accredited Investors
BT ALEX. BROWN INCORPORATED
CIBC OPPENHEIMER CORP.
ABN AMRO INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC.
NESBITT BURNS SECURITIES INC.
Initial Purchasers in connection
with the Offering Memorandum
Referred to Below
FIRST UNION NATIONAL BANK
Trustee in connection with the
Offering Memorandum
Referred to Below
Ladies and Gentlemen:
In connection with our proposed purchase of 9 3/8% Senior Subordinated
Notes due 2008 (the "Notes") of General Binding Corporation, a Delaware
corporation (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated May 21, 1998, relating to the Notes and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated in the section
entitled "Transfer Restrictions" of such Offering Memorandum.
2. We understand that any subsequent transfer of Notes is subject to
certain restrictions and conditions set forth in the Indenture relating to the
Notes (the "Indenture") as described in the Offering Memorandum and the
undersigned agrees to be bound by such restrictions and conditions, and agrees
not to resell, pledge or otherwise transfer the Notes except in compliance with
the Securities Act of 1933, as amended (the "Securities Act"), and all
applicable state securities laws.
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act or pursuant to any state securities laws,
and that the Notes may not be offered or sold within the United States or to,
or for the account or benefit of, U.S. persons except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell any
Notes, we will do so only (i)
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to the Company or any subsidiary thereof, (ii) inside the United States in
accordance with Rule 144A promulgated under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A promulgated under the Securities
Act), (iii) inside the United States to an institutional "accredited investor"
(as defined below) that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to the Trustee (as defined in the Indenture)
a signed letter containing certain representations and agreements relating to
the restrictions on transfer of the Notes (the form of which letter can be
obtained from the Trustee), (iv) outside the United States in accordance with
Rule 904 of Regulation S promulgated under the Securities Act to non-U.S.
persons, (v) pursuant to the exemption from registration provided by Rule 144
promulgated under the Securities Act (if available), or (vi) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchase any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.
4. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the Trustee and the Company such certification, written
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities
Act) and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear
the economic risk of our or their investment, as the case may be, for an
indefinite period of time.
6. We are acquiring the Notes purchased by us for our account or for one
or more accounts (each of which is an institutional "accredited investor") as
to each of which we exercise sole investment discretion.
You, the Company, the Trustee and their respective counsel are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or
a copy hereto to any interested party in any administrative or legal proceeding
or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:__________________________________
Name:
Title:
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EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ],[ ]
[ ]
[ ]
[ ]
Re: General Binding Corporation
(the "Company") ____% Senior
Subordinated Notes due 2008
(the "Notes")
-----------------------------
Ladies and Gentlemen:
In connection with our proposed sale of [$ ] aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
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(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You, the Company, the Trustee and others are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
Authorized Signature
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EXHIBIT F
FORM OF GUARANTEE
For value received, the undersigned hereby unconditionally guarantees, as
principal obligor and not only as a surety, to the Holder of this Note the cash
payments in United States dollars of principal of, premium, if any, and
interest on this Note (and including Additional Interest payable thereon) in
the amounts and at the times when due and interest on the overdue principal,
premium, if any, and interest, if any, of this Note, if lawful, and the payment
or performance of all other obligations of the Company under the Indenture or
the Notes, to the Holder of this Note and the Trustee, all in accordance with
and subject to the terms and limitations of this Note, Article Eleven of the
Indenture and this Guarantee. This Guarantee will become effective in
accordance with Article Eleven of the Indenture and its terms shall be
evidenced therein. The validity and enforceability of any Guarantee shall not
be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Indenture dated as of May 27, 1998, among General
Binding Corporation, a Delaware corporation, as issuer (the "Company"), each of
the Subsidiary Guarantors named therein and First Union National Bank, as
trustee (the "Trustee"), as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Eleven of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAW. The undersigned Subsidiary Guarantor hereby agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
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IN WITNESS WHEREOF, each Subsidiary Guarantor has caused its Guaranty to
be duly executed.
Date:________________________________
[NAME OF SUBSIDIARY GUARANTOR],
as a Subsidiary Guarantor
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
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