EXHIBIT 4.1
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INDENTURE
Dated as of July 31, 1998
Among
Globe Manufacturing Corp.,
as Issuer,
the guarantors party hereto from time to time,
and
Norwest Bank Minnesota, National Association,
as Trustee
_________________________
$300,000,000
10% Senior Subordinated Notes due 2008
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Cross-Reference Table
TIA Indenture
Section Section
- ------- ---------
310 (a)(1)......................................... 7.10
(a)(2)......................................... 7.10
(a)(3)......................................... N.A.**
(a)(4)......................................... N.A.
(a)(5)......................................... 7.08; 7.10
(b)............................................ 7.08; 7.10
(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)......................................... 7.06
(b)(2)......................................... 7.06
(c)............................................ 7.06; 13.02
(d)............................................ 7.06
314 (a)(1),(2),(3)................................. 4.06; 4.08 7.06; 13.02
(a)(4)......................................... 4.06
(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
317 (a)(1)......................................... 6.08
(a)(2)......................................... 6.09
(b)............................................ 2.04
318 (a)............................................ 13.01
(c)............................................ 13.01
___________________
** N.A. means Not Applicable
This Cross-Reference Table shall not, for any purpose, be deemed to be a part of
this Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE............................................................... 1
SECTION 1.01. Definitions............................................................................ 1
SECTION 1.02. Incorporation by Reference of TIA...................................................... 26
SECTION 1.03. Rules of Construction.................................................................. 27
ARTICLE TWO
THE SECURITIES.......................................................................................... 28
SECTION 2.01. Form and Dating....................................................................... 28
SECTION 2.02. Execution and Authentication.......................................................... 28
SECTION 2.03. Registrar and Paying Agent............................................................ 30
SECTION 2.04. Paying Agent To Hold Assets in Trust.................................................. 30
SECTION 2.05. Securityholder Lists.................................................................. 30
SECTION 2.06. Transfer and Exchange................................................................. 31
SECTION 2.07. Replacement Securities................................................................ 31
SECTION 2.08. Outstanding Securities................................................................ 32
SECTION 2.09. Treasury Securities................................................................... 33
SECTION 2.10. Temporary Securities.................................................................. 33
SECTION 2.11. Cancellation.......................................................................... 33
SECTION 2.12. Defaulted Interest.................................................................... 34
SECTION 2.13. CUSIP Number.......................................................................... 34
SECTION 2.14. Deposit of Moneys..................................................................... 34
SECTION 2.15. Book-Entry Provisions for Global Securities........................................... 35
SECTION 2.16. Special Transfer Provisions........................................................... 36
SECTION 2.17. Liquidated Damages under Registration Rights Agreement................................ 39
ARTICLE THREE
REDEMPTION.............................................................................................. 39
SECTION 3.01. Optional Redemption................................................................... 39
SECTION 3.02. Applicability of Article.............................................................. 40
SECTION 3.03. Election To Redeem; Notice to Trustee................................................. 40
SECTION 3.04. Selection by Trustee of Securities To Be Redeemed..................................... 40
SECTION 3.05. Notice of Redemption.................................................................. 41
SECTION 3.06. Deposit of Redemption Price........................................................... 42
SECTION 3.07. Securities Payable on Redemption Date................................................. 42
SECTION 3.08. Securities Redeemed in Part........................................................... 42
ARTICLE FOUR
COVENANTS............................................................................................... 43
SECTION 4.01. Payment of Securities................................................................. 43
SECTION 4.02. Maintenance of Office or Agency....................................................... 43
SECTION 4.03. Corporate Existence................................................................... 43
SECTION 4.04. Payment of Taxes and Other Claims..................................................... 43
SECTION 4.05. Maintenance of Properties and Insurance............................................... 44
SECTION 4.06. Compliance Certificate; Notice of Default............................................. 44
SECTION 4.07. Compliance with Laws.................................................................. 45
SECTION 4.08. Reports............................................................................... 45
SECTION 4.09. Waiver of Stay, Extension or Usury Laws............................................... 46
SECTION 4.10. Limitation on Restricted Payments..................................................... 46
SECTION 4.11. Limitation on Transactions with Related Persons....................................... 48
SECTION 4.12. Limitation on Incurrence of Debt and Issuance
of Preferred Stock........................................................... 49
SECTION 4.13. Payment Restrictions Affecting Restricted Subsidiaries................................ 52
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt................................. 53
SECTION 4.15. Change of Control..................................................................... 54
SECTION 4.16. Limitation on Asset Sales............................................................. 56
SECTION 4.17. Limitation on Liens................................................................... 58
SECTION 4.18. Guarantees by Restricted Subsidiaries. ............................................... 58
SECTION 4.19. Conduct of Business of the Issuer and
Its Restricted Subsidiaries.................................................. 59
SECTION 4.20. Guarantors. .......................................................................... 59
SECTION 4.21. Rule 144A Information Requirement..................................................... 60
SECTION 4.22. Issuance and Sale of Capital Stock of Restricted Subsidiaries......................... 60
SECTION 4.23. Limitation on Sale and Lease-Back Transactions........................................ 60
SECTION 4.24. Payments for Consent.................................................................. 60
ARTICLE FIVE
SUCCESSOR CORPORATION................................................................................... 61
SECTION 5.01. Merger, Consolidation or Sale of Assets. ............................................. 61
SECTION 5.02. Successor Corporation Substituted..................................................... 62
ARTICLE SIX
DEFAULT AND REMEDIES.................................................................................... 62
SECTION 6.01. Events of Default..................................................................... 62
SECTION 6.02. Acceleration.......................................................................... 64
SECTION 6.03. Other Remedies........................................................................ 65
SECTION 6.04. Waiver of Past Defaults............................................................... 66
ii
SECTION 6.05. Control by Majority................................................................... 66
SECTION 6.06. Limitation on Suits................................................................... 66
SECTION 6.07. Rights 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. Disclaimer of Trustee................................................................. 71
SECTION 7.05. Notice of Default..................................................................... 72
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......................................................... 75
SECTION 7.11. Preferential Collection of Claims Against the Issuer.................................. 75
ARTICLE EIGHT
DISCHARGE OF THIS INDENTURE; DEFEASANCE................................................................. 75
SECTION 8.01. Option to Effect Defeasance or Covenant Defeasance.................................... 75
SECTION 8.02. Defeasance and Discharge.............................................................. 75
SECTION 8.03. Covenant Defeasance................................................................... 76
SECTION 8.04. Conditions to Defeasance or Covenant Defeasance....................................... 76
SECTION 8.05. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions................................... 78
SECTION 8.06. Reinstatement......................................................................... 79
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS..................................................................... 80
SECTION 9.01. Without Consent of Holders............................................................ 80
SECTION 9.02. With Consent of Holders............................................................... 81
SECTION 9.03. Compliance with TIA................................................................... 82
SECTION 9.04. Revocation and Effect of Consents..................................................... 82
SECTION 9.05. Notation on or Exchange of Securities................................................. 83
SECTION 9.06. Trustee To Sign Amendments, etc....................................................... 83
iii
ARTICLE TEN
SUBORDINATION OF SECURITIES.................................................................... 84
SECTION 10.01. Securities Subordinated to Senior Debt....................................... 84
SECTION 10.02. No Payment on Securities in Certain Circumstances............................ 84
SECTION 10.03. Payment Over of Proceeds upon Dissolution, etc............................... 85
SECTION 10.04. Payments May Be Paid Prior to Dissolution.................................... 86
SECTION 10.05. Subrogation.................................................................. 87
SECTION 10.06. Obligations of the Issuer Unconditional...................................... 87
SECTION 10.07. Notice to Trustee............................................................ 87
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent............... 88
SECTION 10.09. Trustee's Relation to Senior Debt............................................ 88
SECTION 10.10. Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior Debt............................ 89
SECTION 10.11. Securityholders Authorize Trustee To
Effectuate Subordination of Securities....................................... 90
SECTION 10.12. This Article Ten Not To Prevent Events of Default............................ 90
ARTICLE ELEVEN
GUARANTEES OF THE SECURITIES................................................................... 91
SECTION 11.01. Guarantees................................................................... 91
SECTION 11.02. Execution and Delivery of the Guarantees..................................... 93
SECTION 11.03. Additional Guarantors........................................................ 93
SECTION 11.04. Limitation of Guarantors' Liability.......................................... 93
SECTION 11.05. Release from Guarantee....................................................... 93
SECTION 11.06. Contribution................................................................. 94
SECTION 11.07. Waiver of Subrogation........................................................ 94
ARTICLE TWELVE
SUBORDINATION OF GUARANTEES.................................................................... 95
SECTION 12.01. Guarantee Obligations Subordinated to Guarantor Senior Debt.................. 95
SECTION 12.02. No Payment on Guarantees in Certain Circumstances............................ 95
SECTION 12.03. Payment Over of Proceeds Upon Dissolution, etc............................... 97
SECTION 12.04. Payments May Be Paid Prior to Dissolution.................................... 98
SECTION 12.05. Subrogation.................................................................. 98
SECTION 12.06. Guarantee Provisions Solely To Define Relative Rights........................ 99
SECTION 12.07. Trustee To Effectuate Subordination of Obligations
Under the Guarantees......................................................... 100
SECTION 12.08. No Waiver of Guarantee Subordination Provisions.............................. 100
iv
SECTION 12.09. Guarantors To Give Notice to Trustee........................................ 101
SECTION 12.10. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc., of Guarantors............................ 102
SECTION 12.11. No Suspension of Remedies................................................... 102
SECTION 12.12. Trustee's Relation to Guarantor Senior Debt................................. 102
SECTION 12.13. No Subordination of Certain Claims.......................................... 103
ARTICLE THIRTEEN
MISCELLANEOUS................................................................................. 103
SECTION 13.01. TIA Controls................................................................ 103
SECTION 13.02. Notices..................................................................... 103
SECTION 13.03. Communications by Holders with Other Holders................................ 104
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.......................... 104
SECTION 13.05. Statements Required in Certificate or Opinion............................... 105
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar................................... 105
SECTION 13.07. Legal Holidays.............................................................. 105
SECTION 13.08. Governing Law............................................................... 106
SECTION 13.09. No Adverse Interpretation of Other Agreements............................... 106
SECTION 13.10. No Recourse Against Others.................................................. 106
SECTION 13.11. Successors.................................................................. 106
SECTION 13.12. Duplicate Originals......................................................... 106
SECTION 13.13. Severability................................................................ 106
SIGNATURES............................................................................................. 108
Exhibit A-1 - Form of Security
Exhibit A-2 - Form of Exchange Security
Exhibit B - Form of Legend for Global Security
Exhibit C - Transferee Certificate for Institutional Accredited Investors
Who Are Not QIBs
Exhibit D - Form of Letter for Transfers to Non-U.S. Persons
This Table of Contents shall not, for any purpose, be deemed to be part of this
Indenture.
v
This INDENTURE, dated as of July 31, 1998, among Globe Manufacturing
Corp., an Alabama corporation (the "Issuer"), each of the Issuer's future
Restricted Domestic Subsidiaries that executes a supplemental indenture in which
it agrees to be bound by the terms of this Indenture as a Guarantor
(collectively, the "Guarantors") and Norwest Bank Minnesota, National
Association, a national banking association, as trustee (the "Trustee").
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 Issuer's 10%
Senior Subordinated Notes due 2008:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.0 Definitions.
"Acceleration Notice" has the meaning provided in Section 6.02.
"Accounts Receivable Subsidiary" means any Subsidiary of the Issuer
that is, directly or indirectly, wholly owned by the Issuer (other than director
qualifying shares) and organized solely for the purpose of and engaged in (i)
purchasing, financing and collecting accounts receivable obligations of
customers of the Issuer or its Subsidiaries, (ii) the sale or financing of such
accounts receivable or interest therein and (iii) other activities incident
thereto.
"Acquired Debt" means, with respect to any specified Person, (i) Debt
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, including,
without limitation, Debt incurred in connection with, or in contemplation of,
such other Person merging with or into or becoming a Restricted Subsidiary of
such specified Person, and (ii) Debt secured by a Lien encumbering any asset
acquired by such specified Person which, in each case, is not repaid at or
within five days following the date of such acquisition.
"Adjusted Net Assets" of a Guarantor at any date means the lesser of
the amount by which (i) the fair value of the property of such Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under its
Guarantee, of such Guarantor at such date and (ii) the present fair salable
value of the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date and after giving effect to any collection from any Subsidiary of
such Guarantor in respect of the obligations of such Subsidiary under the
Guarantee of such Guarantor), excluding Guarantor Subordinated Debt and debt in
respect of its Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. Notwithstanding the
foregoing, no Person (other than the Issuer or any Subsidiary of the Issuer) in
whom a Securitization Entity makes an Investment in connection with a Qualified
Securitization Transaction shall be deemed to be an Affiliate of the Issuer or
any of its Subsidiaries solely by reason of such Investment.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.15.
"Asset Sale" means (i) the sale, lease (other than operating leases
entered into in the ordinary course of business), conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
Sale and Lease-Back Transaction) other than in the ordinary course of business
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Issuer and its Restricted Subsidiaries
taken as a whole will be governed by the provisions of Section 4.15 and/or the
provisions of Section 5.01 and not by the provisions of Section 4.16), and (ii)
the issue or sale by the Issuer or any of its Restricted Subsidiaries of Equity
Interests of any of the Issuer's Restricted Subsidiaries (to the extent such
Equity Interests are held by the Issuer or another Restricted Subsidiary of the
Issuer), in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions that (x) have a fair market
value in excess of $1.0 million or (y) generate net proceeds in excess of $1.0
million. Notwithstanding the foregoing, the following shall not be deemed to
constitute Asset Sales: (i) sales of accounts receivable, equipment and related
assets (including contract rights) of the type specified in the definition of
"Qualified Securitization Transaction" to a Securitization Entity for the fair
market value thereof, including cash in an amount at least equal to 75% of the
fair market value thereof as determined in accordance with GAAP; (ii) transfers
of accounts receivable, equipment and related assets (including contract rights)
of the type specified in the definition of "Qualified Securitization
Transaction" (or a fractional undivided interest therein) by a Securitization
Entity in a Qualified Securitization Transaction (for the purposes of this
clause (ii), Purchase Money Notes shall be deemed to be cash); (iii) a transfer
of assets by the Issuer to a Restricted Subsidiary or by a Restricted Subsidiary
to the Issuer or to another Restricted Subsidiary; (iv) a disposition of
inventory held for sale in the ordinary course of business or obsolete, worn out
or damaged property or equipment in the ordinary course of business; (v) an
issuance of Equity Interests by a Restricted Subsidiary to the Issuer or to
another Restricted Subsidiary; (vi) a Restricted Payment or Permitted Investment
that is permitted by Section 4.10; (vii) the sale or discount, in each case
without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof;
(viii) the grant in the ordinary course of business of any non-exclusive license
of patents, trademarks, registrations therefor and other similar intellectual
property;
2
and (ix) sales of accounts receivable for cash at fair market value, and any
sale, conveyance or transfer of accounts receivable in the ordinary course of
business to an Accounts Receivable Subsidiary or to third parties that are not
Affiliates of the Issuer or any Subsidiary of the Issuer.
"Asset Sale Offer" has the meaning provided in Section 4.16(c).
"Asset Sale Offer Date" has the meaning provided in Section 4.16(c).
"Asset Sale Offered Price" has the meaning provided in Section
4.16(c).
"Asset Sale Pari Passu Offer" has the meaning provided in Section
4.16(c).
"Attributable Debt" in respect of a Sale and Lease-Back Transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such Sale and Lease-Back Transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Authenticating Agent" has the meaning provided in Section 2.02.
"Authorized Officer" means, with respect to any Person (other than any
Agent), each of the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President, the Treasurer, the
Secretary or any Assistant Secretary of such Person, or any other officer
designated as an Authorized Officer by the Board of Directors (or similar
governing body of such Person) in a writing delivered to the Trustee, or with
respect to a Person (other than any Agent) organized as a partnership, limited
liability partnership or limited liability limited partnership, the general
partner or managing member of such Person, as the case may be.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal, state or foreign law
relating to bankruptcy, insolvency, receivership, winding up, liquidation,
reorganization or relief of debtors, or any amendment to, succession to or
change in any such law.
"Board of Directors" means the board of directors, 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 a copy of a resolution certified pursuant to
an Officers' Certificate to have been duly adopted by the Board of Directors of
the Issuer or a Restricted Subsidiary of the Issuer, as appropriate, and to be
in full force and effect, and delivered to the Trustee.
3
"Business Day" means a day that is not a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition, (iii) certificates of deposit
and Eurodollar time deposits with maturities of one year or less from the date
of acquisition, bankers' acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any lender party to the Senior Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Keefe Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing within one year after the date of acquisition, (vi) marketable
direct obligations issued by any state of the United States or any political
subdivision, or public instrumentality of such state, in each case having
maturities of not more than one year from the date of acquisition and, at the
time of acquisition thereof, having one of the two highest ratings obtainable
from either Moody's Investors Service, Inc. or Standard & Poor's Corporation,
and (vii) money market, mutual or similar funds which invest substantially all
of their assets in securities of the type described in clauses (i) through (vi)
above.
"Certificated Securities" has the meaning provided in Section 2.01.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Issuer and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act), or group of related persons, together with any Affiliates thereof (other
than Permitted Holders); (ii) the adoption by the Issuer of a plan relating to
the liquidation or dissolution of the Issuer; (iii) the first day on which a
majority of the members of the Board of Directors of the Issuer or Parent (for
so long as Parent beneficially owns a majority of any class of the Voting Stock
of the Issuer) are not Continuing Directors; or (iv) the consummation of any
transaction (including, without
4
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above) or group of related persons, together with any
Affiliates thereof (other than Permitted Holders) becomes the "beneficial owner"
(as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% (measured by voting power rather than
number of shares) of the Voting Stock of the Issuer or Parent (for so long as
Parent beneficially owns a majority of any class of the Voting Stock of the
Issuer).
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section
4.15.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus, without
duplication, (i) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale (to the extent such losses were
deducted in computing such Consolidated Net Income and without regard to the
$1.0 million threshold in the definition thereof), plus (ii) provision for taxes
based on income or profits of such Person and its Subsidiaries for such period,
to the extent that such provision for taxes was included in computing such
Consolidated Net Income, plus (iii) consolidated interest expense of such Person
and its Restricted Subsidiaries for such period (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to Hedging
Obligations) to the extent that any such expense was deducted in computing such
Consolidated Net Income, plus (iv) the consolidated net interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period
to the extent that any such expense was deducted in computing such Consolidated
Net Income, plus (v) depreciation, amortization (including amortization of
goodwill and other intangibles) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income, minus
(vi) other non-recurring non-cash items increasing such Consolidated Net Income
for such period (which will be added back to Consolidated Cash Flow in any
subsequent period to the extent cash is received in respect of such item in such
subsequent period), in each case, on a consolidated basis and determined in
accordance with GAAP. Notwithstanding the foregoing, "Consolidated Cash Flow"
shall be calculated without giving effect to amortization or depreciation of any
amounts required or permitted by Accounting Principles Board Opinion Nos. 16
(including non-cash write-ups and non-cash charges relating to
5
inventory and fixed assets, in each case arising in connection with any
acquisition permitted under this Indenture) and 17 (including non-cash charges
relating to intangibles and goodwill arising in connection with any such
acquisition).
"Consolidated Fixed Charge Coverage Ratio" means with respect to any
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Consolidated Fixed Charges of such Person for such
period. In the event that the Issuer or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays or redeems any Debt (other than revolving
credit borrowings) or issues or redeems preferred stock subsequent to the
commencement of the period for which the Consolidated Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Consolidated Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Consolidated Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, guarantee,
repayment or redemption of Debt, or such issuance or redemption of preferred
stock, as if the same had occurred at the beginning of the applicable four-
quarter reference period. In addition, for purposes of making the computation
referred to above, (i) acquisitions or Asset Sales that have been made by the
Issuer or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be deemed to have occurred on the first day
of the four-quarter reference period and Consolidated Cash Flow for such
reference period shall be calculated without giving effect to clause (iii) of
the proviso set forth in the definition of Consolidated Net Income, and (ii) the
Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, and (iii) the Consolidated Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such
Consolidated Fixed Charges will not be obligations of the referent Person or any
of its Restricted Subsidiaries following the Calculation Date. In calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Fixed Charge Coverage Ratio," (i)
interest on Debt determined on a fluctuating basis as of the Calculation 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 Debt in
effect on the Calculation Date, (ii) if interest on any Debt actually incurred
on the Calculation Date may be optionally determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered rate
or other rates, then the interest rate in effect on the Calculation Date will be
deemed to have been in effect during the relevant four-quarter period reference,
and (iii) notwithstanding the foregoing, interest on Debt 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) the consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization
6
of debt issuance costs (other than those debt issuance costs incurred on the
Issue Date in connection with the Transactions) and original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations), and (ii) the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period,
and (iii) any interest expense on Debt of another Person that is guaranteed by
such Person or one of its Restricted Subsidiaries or secured by a Lien on assets
of such Person or one of its Subsidiaries (whether or not such guarantee or Lien
is called upon), and (iv) all dividend payments, whether or not in cash, on any
series of preferred stock of such Person or any of its Restricted Subsidiaries
(other than dividend payments on Equity Interests payable solely in Equity
Interests (other than Disqualified Stock) of the Issuer) paid or accrued during
such period.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income (or loss) of any Person acquired in a pooling
of interests transaction for any period prior to the date of such acquisition
shall be excluded, (iv) the cumulative effect of a change in accounting
principles adopted after the Issue Date shall be excluded, (v) any restoration
to Net 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,
shall be excluded, (vi) 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 shall be excluded, (vii) non-cash compensation charges
arising upon the issuance or exercise of employee stock options or Capital Stock
(other than Disqualified Stock) shall be excluded and (viii) all extraordinary
gains and extraordinary losses and any unusual or non-recurring charges recorded
or accrued in connection with the Transactions (as defined in the Final Offering
Memorandum) shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the ordinary shareholders of
such Person and its consolidated Subsidiaries as of such date and (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
7
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (A) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of this Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, (B)
all investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments) and (C)
all unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Director" means, as of any date of determination, any
member of the Board of Directors of the Issuer or Parent, as the case may be,
who (i) was a member of such Board of Directors on the date of this Indenture,
(ii) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election or (iii) was nominated for
election or elected to such Board of Directors by or with the approval of the
Permitted Holders.
"Credit Facilities" means, with respect to the Issuer or any
Subsidiary, one or more debt facilities (including, without limitation, the
Senior Credit Facility) or commercial paper facilities with banks or other
lenders providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables), bankers
acceptance or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
Debt under Credit Facilities outstanding on the date on which Securities are
first issued and authenticated under this Indenture shall be deemed to have been
incurred on such date in reliance on the exception provided by clause (i) of the
definition of Permitted Debt.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Issuer or any Restricted Subsidiary of the Issuer against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Debt" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all Debt of others
8
secured by a Lien on any asset of such Person (whether or not such Debt is
assumed by such Person) and, to the extent not otherwise included, the guarantee
by such Person of any Debt of any other Person (but excluding, with respect to
Debt of a Securitization Entity, any Standard Securitization Undertakings that
might be deemed to constitute guarantees). The amount of any Debt outstanding as
of any date shall be (i) the accrued or accreted value thereof, in the case of
any Debt that does not require current payments of interest, and (ii) the
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Debt. For purposes of calculating the
amount of Debt of a Securitization Entity outstanding as of any date, the face
or notional amount of any interest in receivables or equipment that is
outstanding as of such date shall be deemed to be Debt but any such interests
held by Affiliates of such Securitization Entity shall be excluded for purposes
of such calculation.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Securities issued in the form
of one or more Global Securities, The Depository Trust Company or another Person
designated as Depositary by the Issuer, which must be a clearing agency
registered under the Exchange Act.
"Designated Senior Debt" means (i) any Debt under the Senior Credit
Facility and (ii) any other Senior Debt or Guarantor Senior Debt permitted under
this Indenture the principal amount of which is $10.0 million or more and that
has been expressly designated by the Issuer in such Senior Debt or Guarantor
Senior Debt instrument as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (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 redeemable at
the option of the holder thereof, in whole or in part, on or prior to the first
anniversary of the Stated Maturity of the Securities; provided, however, that
any Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Issuer to repurchase such Capital
Stock upon the occurrence of a Change of Control or an Asset Sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Issuer may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.10.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a bona fide underwritten sale to the public of
Equity Interests (other than Disqualified Stock) of the Issuer or of Parent (to
the extent the net proceeds thereof are contributed to the Issuer as common
equity) pursuant to a registration statement (other
9
than on Form S-8 or any other form relating to securities issuable under any
benefit plan of the Issuer or Parent, as the case may be) that is declared
effective by the Commission.
"Existing Debt" means up to $500,000 in aggregate principal amount of
Debt of the Issuer and its Restricted Subsidiaries (other than Debt under the
Senior Credit Facility) in existence on the date of this Indenture, until such
amounts are repaid.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.16(b).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Securities" means the 10% Senior Subordinated Notes due 2008
of the Issuer to be issued in exchange for the Initial Securities pursuant to
the Registration Rights Agreement or, with respect to Initial Securities issued
under this Indenture subsequent to the Issue Date pursuant to Section 2.02 and
Section 4.12, a registration rights agreement substantially similar to the
Registration Rights Agreement.
"Final Offering Memorandum" means the Offering Memorandum dated July
28, 1998, relating to the offering of the Securities on the Issue Date.
"Foreign Subsidiary" means any Subsidiary not organized or validly
existing under the laws of the United States or any state thereof or the
District of Columbia.
"Foreign Restricted Subsidiary" means any Foreign Subsidiary that is a
Restricted Subsidiary.
"Funding Guarantor" has the meaning provided in Section 11.06.
"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 have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"Global Security" means a security evidencing all or a part of the
Securities issued to the Depositary in accordance with Section 2.01 and bearing
the legend prescribed in Exhibit B.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including,
10
without limitation, letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Debt.
"Guarantee" means a guarantee of the Issuer's Obligations under this
Indenture and the Securities by a Guarantor in accordance with Sections 4.18 or
4.20 and Article 11 of the Indenture.
"Guarantor" means each of the Issuer's Restricted Subsidiaries that
executes a supplemental indenture in which such Restricted Subsidiary agrees to
be bound by the terms of this Indenture as a Guarantor; provided that any Person
constituting a Guarantor as described above shall cease to constitute a
Guarantor when its respective Guarantee is released in accordance with the terms
of this Indenture.
"Guarantor Blockage Period" means a period commencing on the date of
receipt by the Trustee of a Guarantor Default Notice and ending on the earliest
of the dates referred to in clauses (a), (b), (c) or (d) of clause (y) of the
second sentence of Section 12.02(a).
"Guarantor Default Notice" has the meaning provided in Section 12.02.
"Guarantor Senior Debt" means, with respect to any Guarantor, (i) all
Debt of such Guarantor under the Senior Credit Facility and all Hedging
Obligations with respect thereto (including, but not limited to, the principal
of, premium, if any, interest (including any interest accruing subsequent to a
filing of a petition of bankruptcy at the rate provided for in documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, reimbursement obligations under letters of credit issued
under, and fees, expenses, indemnities and other amounts owing in respect of,
the foregoing Debt), (ii) any other Debt permitted to be incurred by such
Guarantor under the terms of this Indenture, unless the instrument under which
such Debt is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Guarantee of such Guarantor and (iii)
all Obligations with respect to the foregoing. Notwithstanding anything to the
contrary in the foregoing, Guarantor Senior Debt will not include (v) Debt
represented by Disqualified Stock, (w) any liability for federal, state, local
or other taxes owed or owing by any Guarantor, (x) any Debt of a Guarantor to
any of its Subsidiaries or other Affiliates, (y) any trade payables or (z) that
portion of any Debt that is incurred in violation of this Indenture.
"Guarantor Subordinated Debt" means any Debt of any Guarantor which is
by its terms subordinated in right of payment to the Obligations under such
Guarantor's Guarantee of the Securities.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under Interest Swap Agreements and Currency
Agreements.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
11
"IAI Securities" means Securities resold by the Initial Purchasers to
an Institutional Accredited Investor.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Initial Purchasers" means BancAmerica Robertson Stephens and Merrill
Lynch & Co.
"Initial Securities" means, collectively, (i) the 10% Senior
Subordinated Notes due 2008 of the Issuer issued on the Issue Date and (ii) one
or more series of 10% Senior Subordinated Notes due 2008 that are issued under
this Indenture subsequent to the Issue Date pursuant to Section 2.02 and Section
4.12, in each case for so long as such securities constitute Restricted
Securities.
"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 interest payable on the Securities under this
Indenture and interest payable under the Registration Rights Agreement.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"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 Issuer or any Restricted Subsidiary of the
Issuer from fluctuations in interest rates.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any Interest Swap Agreement with any other Person.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Debt or other obligations), advances or
capital contributions (excluding commission, travel and similar advances to
officers and employees and extensions of trade credit made in the ordinary
course of business), purchases or other acquisitions for consideration of Debt,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP.
"Issue Date" means July 31, 1998, the date of original issuance of the
Securities.
"Issuer" has the meaning provided in the preamble.
12
"Legal Holiday" has the meaning provided in Section 13.07.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Limited Originator Recourse" means a reimbursement obligation of the
Issuer or a Restricted Subsidiary in connection with a drawing on a letter of
credit, revolving loan commitment, cash collateral account or other such credit
enhancement issue to support Debt of a Securitization Entity under a facility
for the financing of trade receivables and the warehousing of equipment loans
and leases; provided that the available amount of any such form of credit
enhancement at any time shall not exceed 10.0% of the principal amount of such
Debt at such time.
"Management Agreement" means the Management Agreement between the
Issuer and CHS Management III, L.P., dated as of July 31, 1998, as in effect on
the date of this Indenture or as thereafter amended in a manner that is not
adverse to the Issuer or the Holders of the Securities.
"Maturity Date" means August 1, 2008.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to Sale and Lease-Back Transactions) or (b)
the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Debt of such Person or any of its
Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain (but not
loss), together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash and Cash Equivalents received upon the
sale or other disposition of any non-cash consideration received in any Asset
Sale), net of (i) the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, (ii)
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements), (iii) any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP, or against any liabilities associated with
the Asset Sale, or the assets subject thereto, and retained by the Issuer or any
Restricted Subsidiary, and (iv) amounts required to be applied to the repayment
of Debt secured by a Lien on the asset or assets that were the subject of such
Asset Sale,
13
or to the satisfaction of contractual obligations either existing at the date of
this Indenture, or entered into after the date of this Indenture in connection
with the payment of deferred purchase price of the properties or assets that
were the subject of such Asset Sale.
"Non-Recourse Debt" means Debt (i) as to which neither the Issuer nor
any of its Restricted Subsidiaries (A) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute Debt),
(B) is directly or indirectly liable (as guarantor or otherwise) or (C)
constitutes the lender and (ii) no default with respect to which (including any
rights that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Debt (other than the Securities being offered hereby) of the
Issuer or any of its Restricted Subsidiaries to declare a default on such other
Debt or cause the payment thereof to be accelerated or payable prior to its
Stated Maturity.
"Non-U.S. Person" means a Person who is not a "U.S. Person."
"Obligations" means any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"Officers' Certificate" means with respect to any Person, a
certificate signed by the Chairman, Vice 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.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Section
13.05, as they relate to the giving of an Opinion of Counsel.
"Parent" means Globe Holdings, Inc., a Massachusetts corporation, and
its successors and assigns.
"Pari Passu Debt" shall mean (i) any Debt of the Issuer that is pari
passu in right of payment to the Securities and (ii) with respect to any
Guarantee of the Securities, Debt which ranks pari passu in right of payment to
such Guarantee.
"Pari Passu Debt Amount" shall have the definition set forth under
Section 4.16(c).
"Paying Agent" has the meaning provided in Section 2.03, except that,
during the continuance of a Default or Event of Default and for the purposes of
Articles Three and Eight and Sections 4.15 and 4.16, the Paying Agent shall not
be the Issuer or any Affiliate of the Issuer.
"Payment Blockage Notice" has the meaning provided in Section
10.02(a).
14
"Payment Blockage Period" means a period commencing on the date of
receipt by the Trustee of a Payment Blockage Notice and ending on the earliest
of the dates referred to in clauses (1), (2), (3) or (4) of clause (B) of the
second sentence of Section 10.02(a).
"Payment Default" has the meaning provided in Section 6.01.
"Permitted Debt" has the meaning provided in Section 4.12(b).
"Permitted Holders" means (i) Code, Hennessy & Simmons, Inc., (ii)
Code Hennessy & Simmons LLC, (iii) Code, Hennessy & Simmons III, L.P. and (iv)
their respective affiliates.
"Permitted Investments" means: (i) any Investment in the Issuer or in
a Restricted Subsidiary of the Issuer that is engaged in the same or a similar
line of business as the Issuer and its Restricted Subsidiaries (or reasonable
extensions or expansions thereof); (ii) any Investment in Cash Equivalents;
(iii) any Investment by the Issuer or any Restricted Subsidiary of the Issuer in
a Person, if as a result of such Investment (A) such Person becomes a Restricted
Subsidiary of the Issuer that is engaged in the same or a similar line of
business as the Issuer and its Restricted Subsidiaries (or reasonable extensions
or expansions thereof) or (B) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary of the Issuer that is
engaged in the same or a similar line of business as the Issuer and its
Restricted Subsidiaries (or reasonable extensions or expansions thereof); (iv)
any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.16; (v)
any acquisition of assets solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Issuer; (vi) Investments made
in exchange for accounts receivable arising in the ordinary course of business
which have not been collected for 180 days and which are, in the good faith of
the Issuer, substantially uncollectible; provided that any such Investments in
excess of $500,000 shall be approved by the Board of Directors (evidenced by a
Board Resolution set forth in an Officers' Certificate delivered to the
Trustee); (vii) loans and advances to employees of the Issuer and its Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes
not to exceed $1.0 million in the aggregate at any one time outstanding; (viii)
Investments in Permitted Joint Ventures and Investments in suppliers to the
Issuer and its Restricted Subsidiaries in an aggregate amount when taken
together with all other Investments pursuant to this clause (viii) does not
exceed the greater of $10.0 million or 10% of Total Assets at any one time
outstanding; (ix) Hedging Obligations entered into in the ordinary course of
business and otherwise in compliance with this Indenture; (x) other Investments
in any Person having an aggregate fair market value (measured on the date each
such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this
clause (x) that are at the time outstanding, not to exceed $10.0 million; (xi)
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; (xii) guarantees (A) by the
Issuer of Debt otherwise permitted to be incurred by Restricted Subsidiaries of
the Issuer under this
15
Indenture or (B) permitted by Section 4.18; (xiii) any Investment by the Issuer
or a Wholly Owned Subsidiary of the Issuer in a Securitization Entity or any
Investment by a Securitization Entity in any other Person in connection with a
Qualified Securitization Transaction; provided that any Investment in a
Securitization Entity is in the form of a Purchase Money Note or an Equity
Interest; and (xiv) Investments received by the Issuer or its Restricted
Subsidiaries as consideration for asset sales, including Asset Sales; provided
that in the case of an Asset Sale, such Asset Sale is effected in compliance
with Section 4.16; and (xv) Investments by Foreign Subsidiaries of the Company
in currencies of countries in which such subsidiaries conduct business, provided
that such currencies are freely convertible into United States dollars. For
purposes of calculating the aggregate amount of Permitted Investments permitted
to be outstanding at any one time pursuant to clauses (viii) and (x) of the
preceding sentence, (i) to the extent the consideration for any such Investment
consists of Equity Interests (other than Disqualified Stock) of the Issuer, the
value of the Equity Interests so issued will be ignored in determining the
amount of such Investment and (ii) the aggregate amount of such Investments made
by the Issuer and its Restricted Subsidiaries on or after the date of this
Indenture will be decreased (but not below zero) by an amount equal to the
lesser of (A) the cash return of capital to the Issuer or a Restricted
Subsidiary with respect to such Investment that is sold for cash or otherwise
liquidated or repaid for cash (less the cost of disposition, including
applicable taxes, if any) and (B) the initial amount of such Investment.
"Permitted Joint Venture" means any Person which is, directly or
indirectly through its Subsidiaries or otherwise, engaged principally in the
principal business of the Issuer, or a reasonably related business, and the
Capital Stock of which is owned by the Issuer and one or more Persons other than
the Issuer or any Affiliate of the Issuer.
"Permitted Junior Securities" means (i) Equity Interests in Parent,
for so long as Parent owns all of the outstanding Capital Stock of the Issuer,
or, in all other cases, Equity Interests in the Issuer or (ii) debt securities
of the Issuer that are subordinated to all Senior Debt (and any debt securities
issued in exchange for Senior Debt) to the same extent as, or to a greater
extent than, the Securities are subordinated to Senior Debt pursuant to this
Indenture and which, in the case of clauses (i) and (ii), do not mature or
become subject to a mandatory redemption obligation prior to the maturity of the
Securities and do not cause the Securities to be treated in any case or
proceeding or similar event under any bankruptcy or insolvency law as part of
the same class of claims as the Senior Debt.
"Permitted Liens" means (i) Liens to secure obligations in respect of
workers compensation, unemployment, social security, statutory obligations,
surety or appeal bonds or other obligations of a like nature incurred in the
ordinary course of business, (ii) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted, (iii) Liens in favor of the Issuer and any Restricted Subsidiary,
(iv) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business in
respect of obligations not overdue for a period in excess of 30 days or which
are being contested in good faith by appropriate proceedings promptly instituted
and diligently prosecuted; provided that
16
any reserve or other appropriate provision as shall be required to conform with
GAAP shall have been made therefor, (v) Liens securing Senior Debt (including
the Senior Credit Facility), (vi) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Issuer or any
Restricted Subsidiary of the Issuer; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Issuer or such Restricted Subsidiary, (vii) Liens on property existing at the
time of acquisition thereof by the Issuer or any Restricted Subsidiary of the
Issuer; provided that such liens were in existence prior to the contemplation of
such acquisition, (viii) purchase money Liens to finance property or assets of
the Issuer or any Restricted Subsidiary of the Issuer acquired in the ordinary
course of business; provided, however, that (A) the related Purchase Money
Obligations shall not exceed the cost of such property or assets and shall not
be secured by any property or assets of the Issuer or any Restricted Subsidiary
of the Issuer other than the property or assets so acquired and (B) the Lien
securing such Debt shall be created within 90 days of such acquisition, (ix)
Liens existing on the date of this Indenture, (x) judgment Liens not giving rise
to an Event of Default, (xi) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title defects incurred or
imposed, as applicable, in the ordinary course of business and consistent with
industry practices which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the property
subject thereto (as such property is used by the Issuer or its Restricted
Subsidiaries) or interfere with the ordinary conduct of business of the Issuer
or its Subsidiaries; provided, however, that any such Liens are not incurred in
connection with any borrowing of money or commitment to loan any money to or to
extend any credit, (xii) Liens on assets transferred to a Securitization Entity
or on assets of a Securitization Entity, in either case incurred in connection
with a Qualified Securitization Transaction, (xiii) Liens incurred in the
ordinary course of business of the Issuer or any Restricted Subsidiary of the
Issuer with respect to obligations that do not exceed $5.0 million at any one
time outstanding and that (A) are not incurred in connection with the borrowing
of money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (B) do not in the aggregate materially detract
from the value of property or materially impair the use thereof in the operation
of business by the Issuer or such Restricted Subsidiary, (xiv) Liens on assets
of Guarantors to secure Guarantor Senior Debt of such Guarantors that was
permitted by this Indenture to be incurred, (xv) Liens on assets of Unrestricted
Subsidiaries that secure Non-Recourse Debt of Unrestricted Subsidiaries, (xvi)
any interest or title of a lessor under any Capital Lease Obligation, (xvii)
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, (xviii) 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, (xix) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements of the
Issuer or any of its Restricted Subsidiaries, including rights of offset and
set-off, (xx) Liens securing Hedging Obligations, (xxi) leases or subleases
granted to others that do not materially interfere with the ordinary course of
business of the Issuer and its Restricted Subsidiaries, (xxii) Liens arising
from filing Uniform Commercial Code financing statements regarding operating
leases entered into in the ordinary course of business, (xxiii) Liens
17
in favor of customs and revenue authorities arising as a matter of law to secure
payments of customer duties in connection with the importation of goods and
(xxiv) Liens securing Debt of Foreign Restricted Subsidiaries incurred in
reliance on clause (x) of Section 4.12(b).
"Permitted Refinancing Debt" means any Debt of the Issuer or any of
its Restricted Subsidiaries or any Disqualified Stock issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace, defease
or refund other Debt of the Issuer or any of its Restricted Subsidiaries;
provided that: (i) the principal amount (or accrued value, if applicable) of
such Permitted Refinancing Debt does not exceed the principal amount of (or
accrued value, if applicable), plus accrued interest on, the Debt so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable fees and expenses incurred in connection therewith); (ii) such
Permitted Refinancing Debt has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Debt being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Debt being
extended, refinanced, renewed, replaced, defeased or refunded is subordinated in
right of payment to the Securities or any Guarantee, such Permitted Refinancing
Debt has a final maturity date later than the final maturity date of, and is
subordinated in right of payment to the Securities on terms at least as
favorable to the Holders of Securities or the Guarantees, as applicable, as
those contained in the documentation governing the Debt being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Debt is
incurred either by the Issuer or by the Restricted Subsidiary who is the obligor
on the Debt being extended, refinanced, renewed, replaced, defeased or refunded
or is Disqualified Stock.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" of any Person means any Equity Interest of such
Person that has preferential rights to any other Equity Interest of such Person
with respect to dividends or redemptions or upon liquidation.
"principal" of any Debt (including the Securities) means the principal
amount of such Debt plus the premium, if any, on such Debt.
"Private Exchange Securities" shall have the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth in Exhibit A-1.
"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, as in effect on the
Issue Date.
18
"Purchase Money Notes" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from the Issuer or
any Subsidiary of the Issuer in connection with a Qualified Securitization
Transaction to a Securitization Entity which note shall be repaid from cash
available to the Securitization Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables or
newly acquired equipment.
"Purchase Money Obligations" of a Person means Debt of such Person
incurred in connection with the purchase, construction or improvement of
property, plant or equipment used in the business of such Person (whether
through the direct purchase of the assets or the Equity Interests of any Person
owning such assets).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Qualified Securitization Transaction" means any transaction or series
of transactions pursuant to which the Issuer or any of its Restricted
Subsidiaries may sell, convey or otherwise transfer to (i) a Securitization
Entity (in the case of a transfer by the Issuer or any of its Restricted
Subsidiaries) and (ii) any other Person (in the case of a transfer by a
Securitization Entity), or may grant a security interest in, any receivables or
equipment loans (whether now existing or arising or acquired in the future) of
the Issuer or any of its Restricted Subsidiaries, and any assets related thereto
including, without limitation, all collateral securing such receivables and
equipment loans, all contracts and contract rights and all guarantees or other
obligations in respect of such receivables and equipment loans, proceeds of such
receivables and equipment loans and other assets (including contract rights)
which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transaction
involving receivables and equipment (collectively, "transferred assets");
provided that in the case of any such transfer by the Issuer or any of its
Restricted Subsidiaries, the transferor receives cash or Purchase Money Notes in
an amount which (when aggregated with the cash and Purchase Money Notes received
by the Issuer and its Restricted Subsidiaries upon all other such transfers of
transferred assets during the ninety days preceding such transfer) is at least
equal to 75.0% of the aggregate face amount of all receivables so transferred
during such day and the ninety preceding days.
"Redemption Date" means, with respect to any Securities, the Maturity
Date of such Security or the earlier date on which such Security is to be
redeemed by the Issuer pursuant to the terms of the Securities.
"Redemption Price" shall have the meaning provided in Section 3.01.
"Registrar" has the meaning provided in Section 2.03.
19
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date hereof among the Issuer and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Related Person" means with respect to any Person (i) any Affiliate of
such Person, (ii) any individual or other Person who directly or indirectly is
the registered or beneficial owner of 5% or more of any class of Capital Stock
of such Person or warrants, rights, options or other rights to acquire more than
5% of any class of Capital Stock of such Person, (iii) any relative of such
individual by blood, marriage or adoption not more remote than first cousin and
(iv) any officer or director of such Person.
"Related Person Transaction" has the meaning provided in Section 4.11.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Debt; provided that if,
and for so long as, any Designated Senior Debt lacks such a representative, then
the Representative for such Designated Senior Debt shall at all times constitute
the holders of a majority in outstanding principal amount of such Designated
Senior Debt.
"Required Filing Dates" has the meaning provided in Section 4.08.
"Restricted Domestic Subsidiary" means a Restricted Subsidiary
organized and validly existing under the laws of the United States or any state
thereof or the District of Columbia.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" means: (i) any dividend or any other payment or
distribution on account of the Issuer's or any of its Restricted Subsidiaries'
Equity Interests or to the direct or indirect holders of the Issuer's or any of
its Restricted Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Issuer or such Restricted Subsidiary or dividends or
distributions payable to the Issuer or any Wholly Owned Restricted Subsidiary);
(ii) any payment to purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Issuer, any direct or indirect parent of the Issuer
or any Restricted Subsidiary of the Issuer (other than any Equity Interests
owned by the Issuer or any Wholly Owned Restricted Subsidiary); (iii) any
payment to purchase, redeem, defease or otherwise acquire or retire for value
any Subordinated Debt of the Issuer or a Restricted Subsidiary, except a payment
of interest or principal at Stated Maturity; and (iv) any Restricted Investment.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act; provided, that the Trustee or the Registrar shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Security is a Restricted Security.
20
"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 Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by the Issuer or any Restricted Subsidiary of
the Issuer of any real or tangible personal property, which property has been or
is to be sold or transferred by the Issuer or such Restricted Subsidiary to such
Person in contemplation of such leasing.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Issuer's 10% Senior Subordinated Notes due
2008, as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Securitization Entity" means a Wholly Owned Subsidiary of the Issuer
(or another Person in which the Issuer or any Restricted Subsidiary of the
Issuer makes an Investment and to which the Issuer or any Restricted Subsidiary
of the Issuer transfers receivables or equipment and related assets) that
engages in no activities other than in connection with the financing of
receivables or equipment and that is designated by the Board of Directors of the
Issuer (as provided below) as a Securitization Entity (i) no portion of the Debt
or any other Obligations (contingent or otherwise) of which (A) is guaranteed by
the Issuer or any Restricted Subsidiary of the Issuer (other than the
Securitization Entity) in any way other than pursuant to Standard Securitization
Undertakings or Limited Originator Recourse, (B) is recourse to or obligates the
Issuer or any Restricted Subsidiary of the Issuer (other than the Securitization
Entity) in any way other than pursuant to Standard Securitization Undertakings
or Limited Originator Recourse or (C) subjects any property or asset of the
Issuer or any Restricted Subsidiary of the Issuer (other than the Securitization
Entity), directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings or Limited
Originator Recourse, (ii) with which neither the Issuer nor any Restricted
Subsidiary of the Issuer has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Issuer or such
Restricted Subsidiary than those that might be obtained at the time from Persons
that are not Affiliates of the Issuer, other than fees payable in the ordinary
course of business in connection with servicing receivables of such entity and
(iii) to which neither the Issuer nor any Restricted Subsidiary of the Issuer
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 Issuer shall be evidenced by the
filing with the Trustee a Board Resolution of the Issuer giving effect to such
designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions.
21
"Security Amount" has the meaning provided in Section 4.16(c).
"Securityholder" or "Holder" means the Person in whose name a Security
is registered on the Registrar's books.
"Senior Credit Facility" means the Credit Agreement dated as of July
31, 1998, among the Issuer, Parent, the lenders party thereto in their capacity
as such, Bank of America National Trust and Savings Association, as
administrative agent, Merrill Lynch, Pierce, Fenner & Smith, Inc., as
syndication agent, and BancAmerica Robertson Stephens, as arranger, together
with the related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including,
without limitation, increasing the amount of available borrowings thereunder or
adding Subsidiaries of the Issuer as additional borrowers or guarantors
thereunder) all or any portion of the indebtedness under such agreement or any
successor or replacement agreement, whether by the same or any other agent,
lender or group of lenders, whether contained in one or more agreements.
"Senior Debt" means: (i) all Debt of the Issuer outstanding under the
Senior Credit Facility and all Hedging Obligations with respect thereto
(including, but not limited to, the principal of, premium, if any, interest
(including any interest accruing subsequent to a filing of a petition of
bankruptcy at the rate provided for in documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on,
reimbursement obligations under letters of credit issued under, and fees,
expenses, indemnities and other amounts owing in respect of, the foregoing
Debt); (ii) any other Debt permitted to be incurred by the Issuer under the
terms of this Indenture, unless the instrument under which such Debt is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities; and (iii) all Obligations with respect to the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not include (v) Debt represented by Disqualified Stock, (w) any
liability for federal, state, local or other taxes owed or owing by the Issuer,
(x) any Debt of the Issuer to any of its Subsidiaries or other Affiliates, (y)
any trade payables or (z) that portion of any Debt that is incurred in violation
of this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary of the Issuer
that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is in effect
on the Issue Date. Any group of Restricted Subsidiaries of the Issuer that,
taken together, would constitute a Significant Subsidiary, shall be deemed to be
a Significant Subsidiary for purposes of Article Six.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnitees entered into by the Issuer or any
Subsidiary of the Issuer that are reasonably customary in receivables or
equipment loan transactions.
22
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Debt, the date on which such payment of interest
or principal was scheduled to be paid in the original documentation governing
such Debt, and shall not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date originally scheduled
for the payment thereof.
"Subordinated Debt" means any Debt of the Issuer or any Guarantor
which is by its terms subordinated in right of payment to the Securities or any
Guarantee.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (A) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (B)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof). Unless otherwise indicated,
references in this Indenture to a Subsidiary shall mean a Subsidiary of the
Issuer.
"Tax Sharing Agreement" means the Tax Sharing Agreement dated as of
the date of this Indenture between the Issuer and Parent as in effect on the
date of this Indenture or as thereafter amended in a manner that is not adverse
to the Issuer or the Holders of Securities.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Total Assets" means, with respect to any date of determination, the
total assets of the Issuer and its Restricted Subsidiaries shown on the Issuer's
consolidated balance sheet prepared in accordance with GAAP on the last day of
the fiscal quarter prior to the date of determination.
"Transfer Amount" has the meaning provided in Section 2.16.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters or, in the
case of a successor trustee, an officer assigned to the department, division or
group performing the corporate trust work of such successor.
"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.
"Unit Offering" means the offering by Parent of units consisting of
its 14% Senior Discount Notes due 2009 and its warrants to purchase shares of
its common stock undertaken in connection with the Transactions (as defined in
the Final Offering Memorandum).
23
"Unrestricted Securities" means one or more Securities that do not and
are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of
such Person that as of the time of determination shall be or continue to be
designated an Unrestricted Subsidiary in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Issuer
may designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of the Issuer or any Restricted Subsidiary or holds any Lien on
any property of the Issuer or any other Subsidiary of the Issuer that is not a
Subsidiary of the Subsidiary to be so designated; provided that (i) the Issuer
certifies to the Trustee that such designation complies with the provisions of
Section 4.10 and (ii) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to, any indebtedness pursuant to which the lender
has recourse to any of the assets of the Issuer or any of its Restricted
Subsidiaries. The Board of Directors of the Issuer may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary only if (i) immediately
after giving effect to such designation, the Issuer is able to incur at least
$1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage
Ratio test set forth in Section 4.12(a) and (ii) immediately before and
immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing. Any such designation by the Board
of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations 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.
"U.S. Person" has the meaning given in Regulation S under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors, managers, trustees or other governing body, as applicable, of such
Person.
"Weighted Average Life to Maturity" means, when applied to any Debt at
any date, the number of years obtained by dividing (i) the sum of the products
obtained by multiplying (A) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal including
payment at final maturity, in respect thereof, by (B) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment, by (ii) the then outstanding principal amount of
such Debt.
24
"Wholly Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person that is a Wholly Owned Subsidiary of such
Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person, by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 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:
"SEC" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP as in effect on the Issue Date;
(c) "or" is not exclusive;
25
(d) words in the singular include the plural, and words in the plural
include the singular;
(e) "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
(f) all references to Articles, Sections and Exhibits shall mean,
unless the clearly indicates otherwise, the Articles and Sections hereof
and the Exhibits attached hereto, the terms of which Exhibits are hereby
incorporated into this Indenture.
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating.
The Securities and the Exchange Securities, and the notation relating
to the Trustee's certificate of authentication shall be substantially in the
form of Exhibits A-1 and A-2, respectively. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, depository rule or
usage. The Issuer and the Trustee shall approve the form of the Securities and
any notation, legend or endorsement on them. Each Security shall be dated the
date of its issuance and shall show the date of its authentication.
The terms and provisions contained in the Securities, annexed hereto
as Exhibits A-1 and A-2, shall constitute, and are hereby expressly made, a part
of this Indenture and, to the extent applicable, the Issuer and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A or in reliance on
any other exemption from registration under the Securities Act may be issued
initially in the form of one or more permanent Global Securities in registered
form, substantially in the form set forth in Exhibit A-1 ("Global Securities"),
deposited with, or on behalf of, the Depositary and registered in the name of
Cede & Co. or such other nominee, as nominee of the Depositary, and shall bear
the legend set forth on Exhibit B. The aggregate principal amount of any Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Depositary and the Registrar, as the custodian for the
Depositary.
Securities issued in exchange for interests in a Global Security
pursuant to Section 2.15 and Securities offered and sold in reliance on any
exemption from registration under the Securities Act may be issued in the form
of certificated securities in registered form in substantially the form set
forth in Exhibit A-1 (the "Certificated Securities").
26
SECTION 2.02 Execution and Authentication.
Two Authorized Officers shall sign, or one Authorized Officer shall
sign and one Authorized Officer (each of whom shall, in each case, have been
duly authorized by all requisite corporate actions) shall attest to, the
Securities for the Issuer by manual or facsimile signature.
If an Authorized Officer whose signature is on a Security was an
Authorized Officer at the time of such execution but no longer holds that office
or position at the time the Trustee authenticates the Security, the Security
shall nevertheless be valid.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Securities for original
issue in the aggregate principal amount not to exceed $300,000,000 in one or
more series, (ii) Private Exchange Securities from time to time for issue only
in exchange for a like principal amount of Initial Securities and (iii)
Unrestricted Securities from time to time only (A) in exchange for a like
principal amount of Initial Securities or (B) in an aggregate principal amount
of not more than the excess of $300,000,000 over the sum of the aggregate
principal amount of (x) Initial Securities then outstanding, (y) Private
Exchange Securities then outstanding and (z) Unrestricted Securities issued in
accordance with (iii)(A) above, in each case upon a written order of the Issuer
in the form of an Officers' Certificate of the Issuer. Each such written order
shall specify the amount of Securities to be authenticated and the date on which
the Securities are to be authenticated, whether the Securities are to be Initial
Securities, Private Exchange Securities or Unrestricted Securities and whether
the Securities are to be issued as Certificated Securities or Global Securities
and such other information as the Trustee may reasonably request. The aggregate
principal amount of Securities outstanding at any time may not exceed
$300,000,000, except as provided in Section 2.07.
In the event that the Issuer shall issue and the Trustee shall
authenticate any Securities 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 Issuer shall use its reasonable efforts to obtain the
same "CUSIP" number for such Securities as is printed on the Securities
outstanding at such time; provided, however, that if any series of Securities
issued under this Indenture subsequent to the Issue Date is determined, pursuant
to an Opinion of Counsel of the Issuer in a form reasonably satisfactory to the
Trustee, to be a different class of security than the Securities outstanding at
such time for federal income tax purposes, the Issuer may obtain a "CUSIP"
number for such Securities that is different than the "CUSIP" number printed on
the Securities then outstanding. Notwithstanding the foregoing, all Securities
issued under this Indenture shall vote and consent together on all matters (as
to which any of such Securities may vote or consent) as one class and no series
of Securities will have the right to vote or consent as a separate class on any
matter.
27
The Trustee may appoint an authenticating agent (an "Authenticating
Agent") reasonably acceptable to the Issuer to authenticate Securities. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
Authenticating Agent has the same rights as an Agent to deal with the Issuer and
Affiliates of the Issuer.
The Securities 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 Issuer shall maintain an office or agency in the county where the
principal corporate office of the Trustee is located or in such other locations
as the Issuer shall determine, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Issuer in respect of the Securities and this
Indenture may be served. The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Issuer, upon notice to the Trustee, may
have one or more co-Registrars and one or more additional paying agents
reasonably acceptable to the Trustee. The term "Paying Agent" includes any
additional paying agent. The Issuer upon notice to the Trustee may change any
Registrar or Paying Agent without notice to any Holder.
The Issuer 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 Issuer shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Issuer fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such.
The Issuer initially appoints the Trustee as Registrar, Paying Agent
and agent for service of demands and notices in connection with the Securities,
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 Issuer.
SECTION 2.04 Paying Agent To Hold Assets in Trust.
The Issuer 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, or interest on, the Securities (whether such assets have been
distributed to it by the Issuer or any other obligor on the Securities), and the
Issuer and the Paying Agent shall notify the Trustee of any default by the
Issuer (or any other obligor on the Securities) in making any such payment. The
Issuer, upon written direction to the Paying Agent, at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account
28
for any assets disbursed and the Trustee may at any time during the continuance
of any payment Default, upon written request to a Paying Agent, require such
Paying Agent to distribute all assets held by it to the Trustee and to account
for any assets distributed. Upon distribution to the Trustee of all assets that
shall have been delivered by the Issuer (or any other obligor on the Securities)
to the Paying Agent and the completion of any accounting required to be made
hereunder, the Paying Agent shall have no further liability for such assets.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Issuer shall furnish to
the Trustee five Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing a list as of the applicable
record 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.
SECTION 2.06 Transfer and Exchange.
Subject to the provisions of Section 2.15 and 2.16, when Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of 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
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Registrar or co-Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing. To permit registration of transfers
and exchanges, the Issuer shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-Registrar's written request. No service
charge shall be made for any registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or other governmental charge payable upon exchanges or transfers
pursuant to Section 2.02, 2.10, 3.01(ii), 3.08, 4.15, 4.16, or 9.05). The
Registrar or co-Registrar shall not be required to register the transfer of or
exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Securities and
ending at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Security being redeemed in part and (iii) during a Change of
Control Offer or an Asset Sale Offer if such Security is tendered pursuant to
such Change of Control Offer or Asset Sale Offer and not withdrawn.
Prior to the registration of any transfer by a Holder, the Issuer, the
Trustee and any agent of the Issuer shall treat the person in whose name the
Security is registered as the owner thereof for all purposes whether or not the
Security shall be overdue, and neither the Issuer, the Trustee nor any such
agent shall be affected by notice to the contrary. Any Holder of the Global
29
Security shall, by acceptance of such Global Security, agree that transfers of
beneficial interests in such Global Security may be effected only through a
book-entry system maintained by the Holder of such Global Security (or its
agent), and that ownership of a beneficial interest in the Global Security shall
be required to be reflected in a book-entry system.
SECTION 2.07 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Issuer shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. Such Holder must provide an
indemnity bond or other indemnity sufficient, in the judgment of the Issuer and
the Trustee, to protect the Issuer, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. The Issuer may charge such
Holder for its reasonable out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel. Every replacement Security
issued pursuant to this Section 2.07 shall constitute an obligation of the
Issuer.
SECTION 2.08 Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee or the Authenticating Agent except those
canceled by the Trustee, those delivered to it for cancellation and those
described in this Section as not outstanding. Subject to Section 2.09, a
Security does not cease to be outstanding because the Issuer or any of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If the principal amount of any Security is considered paid under
Section 4.01, it ceases to be outstanding and interest ceases to accrue.
If on a Redemption Date, a Change of Control Payment Date, an Asset
Sale Offer 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 Securities payable on that date and is not
prohibited from paying such U.S. Legal Tender or U.S. Government Obligations to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.
30
SECTION 2.09 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver, consent or notice, and for
purposes of determining the amount of Securities outstanding at the time of a
redemption made in accordance with paragraph 6(a)(ii) of the Securities,
Securities owned by the Issuer or an Affiliate of the Issuer 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 direction, waiver or
consent, only Securities which the Trustee actually knows are so owned shall be
so considered. The Issuer shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Securities, of the aggregate
principal amount of such Securities so repurchased or otherwise acquired. The
Trustee may require an Officers' Certificate listing Securities owned by the
Issuer, a Subsidiary of the Issuer or any Affiliate of the Issuer.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Issuer in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Issuer considers
appropriate for temporary Securities. Without unreasonable delay, the Issuer
shall prepare and execute, and the Trustee shall authenticate upon receipt of a
written order of the Issuer pursuant to Section 2.02, definitive Securities in
exchange for temporary Securities.
SECTION 2.11 Cancellation.
The Issuer at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of the Issuer, shall
dispose of and deliver evidence of such disposal of (but shall not be required
to destroy) all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Issuer may not issue new Securities
to replace Securities that the Issuer has paid or delivered to the Trustee for
cancellation. If the Issuer shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the Debt
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12 Defaulted Interest.
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The Issuer will pay interest on overdue principal from time to time on
demand at the rate of interest then borne by the Securities. The Issuer 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 Securities. 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 Issuer defaults in a payment of interest on the Securities, 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 date shall be the fifteenth day next preceding the
date fixed by the Issuer for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. Prior to such
subsequent special record date, the Issuer shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments due
on such day in a timely manner which permits the Paying Agent to remit payment
to the Holders on such day. At least 15 days before the subsequent special
record date, the Issuer shall mail to each Holder, with a copy to the Trustee
and the Agents, 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, the
Issuer may make payment of any defaulted interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange.
SECTION 2.13 CUSIP Number.
The Issuer in issuing the Securities 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 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 Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities. The Issuer shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14 Deposit of Moneys.
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 Asset
Sale Offer Date, the Issuer shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date, Maturity Date, Redemption Date, Change of Control
Payment Date or Asset Sale Offer 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 or
Asset Sale Offer Date, as the case may be.
SECTION 2.15 Book-Entry Provisions for Global Securities.
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(a) The Global Securities initially shall (i) be registered in the
name of Cede & Co., as the nominee of The Depository Trust Company, (ii) be
delivered to the Registrar as custodian for such Depositary and (iii) bear the
legend set forth in Exhibit B.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Registrar as its custodian, or under the
Global Security, and the Depositary may be treated by the Issuer, the Trustee
and any agent of the Issuer or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Certificated Securities in accordance with the
rules and procedures of the Depositary and the provisions of Section 2.16. In
addition, Certificated Securities shall be transferred to all beneficial owners
in exchange for their beneficial interests in Global Securities if (i) the
Issuer notifies the Registrar that the Depositary is unwilling or unable to
continue as Depositary for any Global Security and a successor depositary is not
appointed by the Issuer within 90 days of such notice or (ii) the Issuer, at its
option, notifies the Registrar in writing that it elects to cause the issuance
of Securities in definitive form under this Indenture.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Certificated Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Issuer shall execute, and the Trustee shall authenticate and cause to be
delivered, one or more Certificated Securities of like tenor and amount.
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuer shall execute, and the Trustee shall authenticate
and cause to be delivered to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Securities, an equal
aggregate principal amount of Certificated Securities of authorized
denominations.
(e) Any Certificated Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(c) or (d) shall, except as
33
otherwise provided by paragraphs (a)(i)(x) and (z) of Section 2.16, bear the
Private Placement Legend.
(f) The Holder of any Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 2.16 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-
U.S. Persons and other Transfers Exempt under the Securities Act. The following
provisions shall apply (x) with respect to the registration of any proposed
transfer of a Security constituting a Restricted Security to any Institutional
Accredited Investor which is not a QIB or to any Non-U.S. Person and (y) with
respect to the registration of any proposed transfer pursuant to another
available exemption from the registration requirements of the Securities Act:
(i) the Registrar shall register the transfer of any Securities
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after the second
anniversary of the original issue date with respect thereto; provided,
however, that neither the Issuer nor any Affiliate of the Issuer has held
any beneficial interest in such security, or portion thereof, at any time
on or prior to the second anniversary of such 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 C 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 D or (3) in the case of a transfer pursuant to another
available exemption from the registration requirements of the Securities
Act, the proposed transferee has delivered to the Registrar a certificate
in form and substance reasonably acceptable to the Issuer and the Registrar
in connection with such transfer, together, in the case of clause (1),
clause (2) or clause (3) with such other certifications, legal opinions or
other information as the Issuer, the Trustee or the Registrar 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, or (z) the Trustee and Registrar have
received both an Opinion of Counsel and an Officers' Certificate directing
transfer without a Private Placement Legend; and
(ii) the Registrar shall register the transfer of any Securities
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if the proposed transferor is an Agent Member
holding a beneficial interest in a Global Security, upon, receipt by the
Registrar of (x) the certificate, if any, required by paragraph (i) above
and (y) instructions given in accordance with the Depositary's and the
Registrar's procedures,
34
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Certificated
Securities) a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interest in the Global
Security to be transferred (the "Transfer Amount"), (b) if the Securities to be
transferred are to be evidenced by Certificated Securities, the Issuer shall
execute and the Trustee shall authenticate upon receipt of a written order of
the Issuer in the form of an Officers' Certificate, and cause to be delivered
one or more Certificated Securities in an aggregate principal amount equal to
the Transfer Amount and (c) if the Securities to be transferred are to be
evidenced by an interest in a Global Security, upon receipt of instructions
given in accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase in the
principal amount of the Global Security in which the transferee will hold its
beneficial interest in an amount equal to the Transfer Amount.
If the Securities to be transferred consist of IAI Securities, the
following shall apply: (x) if such IAI Securities are proposed to be transferred
to an Institutional Accredited Investor which is not a QIB, (i) upon the
registration of such transfer such Securities shall continue to be IAI
Securities, and (ii) the Certificated Securities authenticated and delivered in
connection with such transfer shall be in denominations of $100,000 and any
integral multiple of $1,000 above that amount; and (y) if such IAI Securities
are proposed to be transferred to a Non-U.S. Person, (i) upon the registration
of such transfer such Securities shall cease to be IAI Securities, (ii) the
Certificated Securities authenticated and delivered in connection with such
transfer shall not contain the restriction on minimum denominations of $100,000
and (iii) such Certificated Securities shall be in denominations of $1,000 and
any integral multiple thereof.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Security stating, or has otherwise advised the Issuer and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised the
Issuer and the Registrar in writing, that it is purchasing the Security for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the Issuer and the transferor are relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A; if the Trustee or the Issuer shall so request, such proposed
transferor shall have delivered an Opinion of Counsel, an Officers'
Certificate and such other information
35
as the Trustee or the Issuer may reasonably require in connection with such
proposed transfer; and
(ii) if the proposed transferee is an Agent Member, and the Securities
to be transferred consist of Certificated Securities which after transfer
are to be evidenced by an interest in the Global Security, upon receipt by
the Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Security in an amount equal to the principal amount of the Certificated
Securities to be transferred, and the Trustee shall cancel the Certificated
Securities so transferred; and
(iii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of a beneficial interest in a Global
Security which after transfer is to continue to be evidenced by an interest
in a Global Security, upon receipt by the Registrar of instructions given
in accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records (A) the date, (B) a
decrease in the principal amount of the Global Security in which the
transferor owns the beneficial interest to be transferred in an amount
equal to the principal amount of the beneficial interest to be transferred
and (C) an increase in the principal amount of the Global Security in which
the transferee will hold its beneficial interest in a like amount; and
(iv) if the Securities to be transferred consist of IAI Securities,
upon the registration of such transfer according to this Section 2.16 such
Securities shall cease to be IAI Securities and may be evidenced by
Certificated Securities or interests in a Global Security in denominations
of $1,000 and any integral multiple thereof.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the circumstances contemplated by
paragraph (a)(i) of this Section 2.16 exist, (ii) there is delivered to the
Issuer, the Registrar and the Trustee an Opinion of Counsel reasonably
satisfactory to the Issuer, the Registrar and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (iii)
such Securities have been sold pursuant to an effective registration statement
under the Securities Act.
(d) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture and such Security.
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The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Issuer shall have the right to inspect and make copies of all such letters;
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.17 Liquidated Damages under Registration Rights Agreement
Under certain circumstances, the Issuer 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 Securities issued
subsequent to the Issue Date pursuant to Section 2.02, the applicable section).
The terms thereof are incorporated herein by reference.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Optional Redemption.
Optional Redemption. (i) The Securities will be redeemable at the
option of the Issuer, in whole or in part, at any time and from time to time on
or after August 1, 2003, upon not less than 30 nor more than 60 days notice, at
the Redemption Prices (expressed as percentages of principal amount) set forth
below (the "Redemption Price"), plus accrued and unpaid interest thereon to the
applicable Redemption Date, if redeemed during the 12-month period beginning on
August 1 of the years indicated below:
Redemption
Year Price
---- ----------
2003 ................................... 105.000%
2004 ................................... 103.333%
2005 ................................... 101.667%
2006 and thereafter........................ 100.000%
(ii) At any time prior to August 1, 2001, the Issuer may on any one
or more occasions redeem from the net proceeds of one or more Equity Offerings
up to an aggregate of 35.0% in aggregate principal amount of the Securities at a
redemption price of 110% of the principal amount thereof, plus accrued and
unpaid interest thereon to the redemption date; provided that at least $97.5
million in aggregate principal amount of the Securities remain outstanding
immediately after the occurrence of such redemption.
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SECTION 3.02 Applicability of Article.
Redemption of Securities at the election of the Issuer or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 3.03 Election To Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities pursuant to
Section 3.01(a) shall be evidenced by an Officers' Certificate. In case of any
redemption at the election of the Issuer pursuant to Section 3.01(a), the Issuer
shall, at least 45 days prior to the Redemption Date fixed by the Issuer (unless
a shorter notice period shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
Securities to be redeemed.
SECTION 3.04 Selection by Trustee of Securities To Be Redeemed.
In the event that less than all of the Securities are to be redeemed
at any time, selection of such Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or, if the Securities 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 that
no Securities of a principal amount of $1,000 or less shall be redeemed in part.
If any Security is to be redeemed in part only, a new Security 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 Security. On and after the
Redemption Date, if the Issuer does not default in the payment of the Redemption
Price, interest will cease to accrue on Securities or portions thereof called
for redemption.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 3.05 Notice of Redemption.
Notice of redemption shall be mailed by first-class mail, postage
prepaid, mailed at least 30 but no more than 60 days before the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
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(c) if less than all outstanding Securities are to be redeemed, the
identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date
upon surrender of such Security, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that (unless
the Issuer shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Securities; and
(i) the paragraph or section of the Securities or this Indenture
pursuant to which the Securities are being redeemed.
Notice of redemption of Securities to be redeemed shall be given by
the Issuer or, as otherwise requested by the Issuer in writing, by the Trustee
in the name and at the expense of the Issuer.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 3.06 Deposit of Redemption Price.
On or prior to 11:00 a.m. (New York City time) on any Redemption Date,
the Issuer shall deposit or cause to be deposited with the Trustee or with a
Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 2.04) an amount of money in same day funds
sufficient to pay the Redemption Price of, and accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
SECTION 3.07 Securities Payable on Redemption Date.
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Notice of Redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Issuer at the Redemption Price; provided, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more predecessor Securities, registered as
such on the relevant record dates according to the terms and the provisions of
the Securities.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate then borne by
such Security.
SECTION 3.08 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
to the Paying Agent at the office or agency maintained for such purpose pursuant
to Section 2.03 (with, if the Issuer, the Registrar or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to,
the Issuer, the Registrar or the Trustee duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing), and the Issuer shall
execute, and the Trustee shall authenticate and cause to be delivered to the
Holder of such Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal of the
Security so surrendered that is not redeemed.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities.
The Issuer shall pay the principal of and interest on the Securities
on the dates and in the manner provided in this Indenture and in the Securities.
An installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds at 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 otherwise.
Interest will be computed on the basis of a 360-day year comprised of twelve 30-
day months.
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SECTION 4.02 Maintenance of Office or Agency.
The Issuer shall maintain the office or agency required under Section
2.03. The Issuer shall give prior notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.02.
SECTION 4.03 Corporate Existence.
Except as otherwise permitted by Article Four or Article Five, the
Issuer shall do or cause to be done all things reasonably necessary to preserve
and keep in full force and effect its corporate or other existence and the
corporate or other existence of each of its Restricted Subsidiaries in
accordance with the respective organizational documents of each such Restricted
Subsidiary and the material rights (charter and statutory) and franchises of the
Issuer and each of its Restricted Subsidiaries; except for any such existence,
material right or franchise which are not in the aggregate reasonably likely to
have a material adverse effect on the financial condition or results of
operations of the Issuer and its Restricted Subsidiaries, taken as a whole.
SECTION 4.04 Payment of Taxes and Other Claims.
The Issuer 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 Restricted
Subsidiaries or properties of it or any of its Restricted Subsidiaries and (ii)
all material lawful claims for labor, materials, supplies and services that, if
unpaid, might by law become a Lien upon the property of it or any of its
Restricted Subsidiaries; provided, however, that there shall not be required to
be paid or discharged any such tax, assessment, claim or charge, the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge would not result in a material
adverse effect on the financial condition or results of operations of the Issuer
and its Restricted Subsidiaries, taken as a whole.
SECTION 4.05 Maintenance of Properties and Insurance.
(a) The Issuer shall, and shall cause each of its Restricted
Subsidiaries to, maintain its material properties in normal condition (subject
to ordinary wear and tear) and make all reasonably necessary repairs, renewals
or replacements thereto as in the judgment of the Issuer may be reasonably
necessary to the conduct of the business of the Issuer and its Restricted
Subsidiaries; provided, however, that nothing in this Section 4.05 shall prevent
the Issuer or any of its Restricted Subsidiaries from discontinuing the
operation and maintenance of any of its properties, if such properties are no
longer reasonably necessary in the conduct of their respective businesses.
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(b) The Issuer shall provide or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate self-
insurance) against loss or damage of the kinds that, in the reasonable, good
faith opinion of the Issuer are reasonably adequate and appropriate for the
conduct of the business of the Issuer and its Restricted Subsidiaries.
SECTION 4.06 Compliance Certificate; Notice of Default.
(a) The Issuer shall deliver to the Trustee, within 120 days after the
end of the Issuer's fiscal year, an Officers' Certificate (provided, however,
that one of the signatories to each such Officers' Certificate shall be the
Issuer's principal executive officer, principal financial officer or principal
accounting officer) stating that a review of its activities and the activities
of its Restricted Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining whether
a Default or Event of Default has occurred and further stating, as to each such
officer signing such certificate, that to the best of his knowledge, no Default
or Event of Default occurred during such year and at the date of such
certificate there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event of Default, the
certificate shall describe the Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Issuer elect to change the manner in which it fixes its fiscal year end.
(b) (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 Securities, the Issuer
shall deliver to the Trustee 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 five Business
Days of the actual knowledge by an Authorized Officer of such occurrence.
SECTION 4.07 Compliance with Laws.
The Issuer 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 the
Issuer or any of its Subsidiaries conducts business, all states and
municipalities thereof, and the SEC and any other governmental department,
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 noncompliances as are
not in the aggregate reasonably likely to have a material adverse effect on the
financial condition or results of operations of the Issuer and its Restricted
Subsidiaries, taken as a whole.
SECTION 4.08 Reports.
Whether or not the Issuer is then subject to Section 13 or 15(d) of
the Exchange Act, the Issuer will file with the SEC, so long as any Securities
are outstanding, the annual reports
42
(including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual financial statements, a
report thereon by the Issuer's independent accountants), quarterly reports
(including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations") and other periodic reports which the Issuer would have
been required to file with the SEC pursuant to such Section 13 or 15(d) if the
Issuer were so subject, and such documents shall be filed with the SEC on or
prior to the respective dates (the "Required Filing Dates") by which the Issuer
would have been required so to file such documents if the Issuer were so
subject. The Issuer will also in any event, so long as any Securities are
outstanding and whether or not the filing of such documents by the Issuer with
the SEC is prohibited under the Exchange Act, within 15 days of each Required
Filing Date, (a) transmit by mail to all Holders of Securities, as their names
and addresses appear in the Registrar's books, without cost to such Holders and
(b) file with the Trustee, copies of the annual reports, quarterly reports and
other periodic reports which the Issuer would have been required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act if the Issuer were
subject to such Section 13 or 15(d). The Issuer will also comply with any other
periodic reporting provisions pursuant to TIA (S) 314(a). Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Issuer's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.09 Waiver of Stay, Extension or Usury Laws.
The Issuer will not (to the extent that it may lawfully do so) 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 Issuer from paying all or any portion of the
principal of, premium or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
obligations or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Issuer 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.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless, at
the time of and immediately after giving effect to the proposed Restricted
Payment, (i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; (ii) the Issuer would, at
the time of such Restricted Payment and after giving pro forma effect thereto as
if such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of additional
Debt pursuant to the Consolidated Fixed Charge Coverage Ratio
43
test set forth in Section 4.12(a); and (iii) such Restricted Payment, together
with the aggregate amount of all other Restricted Payments made by the Issuer
and its Restricted Subsidiaries after the Issue Date (including Restricted
Payments permitted by clauses (i) and (v) of Section 4.10(b) and excluding the
Restricted Payments permitted by the other clauses therein), is less than or
equal to the sum of (A) 50% of the Consolidated Net Income of the Issuer (or if
Consolidated Net Income shall be a loss, minus 100% of such loss) earned during
the period beginning on the first day of the first fiscal quarter immediately
following the Issue Date and ending on the last day of the fiscal quarter
immediately preceding the date the Restricted Payment is made (the "Reference
Date") (treating such period as a single accounting period) plus (B) 100% of the
aggregate net proceeds (including the fair market value of property other than
cash) received by the Issuer from any Person (other than a Subsidiary of the
Issuer) from the issuance and sale subsequent to the Issue Date of Equity
Interests of the Issuer (other than Disqualified Stock) or from the issue or
sale of Disqualified Stock or debt securities of the Issuer that have been
converted into such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a Subsidiary of the
Issuer); plus (C) without duplication of any amounts included in clause (B)
above, 100% of the aggregate net cash proceeds of any equity contribution
received by the Issuer from a holder of the Issuer's Capital Stock (excluding,
in the case of clauses (B) and (C), any net cash proceeds from an Equity
Offering to the extent used to redeem the Securities and any net cash proceeds
received by the Issuer from the sale of Equity Interests of the Issuer or equity
contribution which has been financed, directly or indirectly using funds (1)
borrowed from the Issuer 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 Issuer or by any of its Subsidiaries), plus (D) to the extent
that any Restricted Investment that was made after the Issue Date is sold by
Issuer or any Restricted Subsidiary for cash or otherwise liquidated or repaid
for cash, the lesser of (1) the fair market value of such Restricted Investment
as of the date of such Restricted Investment or (2) the cash return of capital
with respect to such Restricted Investment (less the cost of disposition, if
any), to the extent any such amount was not otherwise included in Consolidated
Net Income, plus (E) 50% of any dividends received by the Issuer or a Restricted
Subsidiary after the Issue Date from an Unrestricted Subsidiary of the Issuer,
to the extent that such dividends were not otherwise included in Consolidated
Net Income of the Issuer for such period, plus (F) to the extent that any
Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the
Issue Date, the fair market value of the Investment made by the Issuer or any of
its Restricted Subsidiaries in such Subsidiary as of the date of such
redesignation, plus (G) $10.0 million.
For purposes of this Section 4.10(a), the fair market value of property other
than cash shall be determined in good faith by the Board of Directors and
evidenced by an Officers' Certificate filed with the Trustee, except that in the
event the value of any non-cash consideration shall be $10.0 million or more,
the value shall be determined based on an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing.
(b) The provisions of Section 4.10(a) will not prohibit (i) the
payment of any dividend or the consummation of any irrevocable redemption within
60 days after the date of declaration thereof or giving of irrevocable
redemption notice, if at said date of declaration or giving
44
of notice such payment or redemption would have complied with the provisions of
this Indenture; (ii) if no Default or Event of Default shall have occurred and
be continuing, the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Issuer or any Restricted Subsidiary of the Issuer or
any Subordinated Debt of the Issuer or any Restricted Subsidiary, in each case
in exchange for, or out of the net proceeds of, the substantially concurrent
sale (other than to a Restricted Subsidiary of the Issuer) of other Equity
Interests of the Issuer (other than any Disqualified Stock); provided, however,
that the amount of any such net proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded from
clauses (iii) (B) and (iii) (C) of Section 4.10(a); (iii) the redemption,
repurchase, refinancing or defeasance of Subordinated Debt in exchange for, or
with the net cash proceeds from, an incurrence of Permitted Refinancing Debt;
(iv) the payment to Parent of any amounts required under the Tax Sharing
Agreement; (v) if no Default or Event of Default shall have occurred and be
continuing, the payment of dividends to Parent in an amount up to $1.0 million
in any period of four consecutive quarters to fund repurchases by Parent (or its
successor) of Equity Interests therein or Debt of Parent issued in connection
with such Equity Interests held by Persons who have ceased to be bona fide
officers or employees of the Issuer or one of its Restricted Subsidiaries,
provided that any unused amount thereof may be carried forward to subsequent
periods so long as the total amount of such Restricted Payments shall not exceed
$5.0 million in the aggregate (which shall be increased by the amount of any net
cash proceeds (after deducting any premiums) to the Issuer from (A) sales of
Equity Interests of Parent to management employees subsequent to the Issue Date
and (B) any ''key-man'' life insurance policies which are used to make such
redemptions and repurchases); (vi) the payment of dividends to Parent in an
amount necessary to fund Parent's bona fide corporate overhead and similar fees
and expenses relating to the ownership or operation of the Issuer; (vii)
repurchases of Equity Interests deemed to occur upon the exercise of stock
options if such Equity Interests represent a portion of the exercise price
thereof; and (viii) distributions to Parent to fund the Transactions (as such
term is defined in and as described in the Final Offering Memorandum) and to pay
fees and expenses incurred in connection with the Transactions and the Unit
Offering.
(c) The Board of Directors of the Issuer may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default or an Event of Default. For purposes of making such determination, all
outstanding Investments by the Issuer and its Restricted Subsidiaries (except to
the extent repaid in cash) in the Subsidiary so designated will be deemed to be
Restricted Payments at the time of such designation and will reduce the amount
available for Restricted Payments under Section 4.10(a). All such outstanding
Investments will be deemed to constitute Investments in an amount equal to the
greater of (i) the net book value of such Investments at the time of such
designation and (ii) the fair market value of such Investments at the time of
such designation. Such designation will only be permitted if such Restricted
Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
SECTION 4.11 Limitation on Transactions with Related Persons.
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The Issuer will not, nor will it permit any of its Restricted
Subsidiaries to, directly or indirectly (i) sell, lease, transfer or otherwise
dispose of any of its property to, (ii) purchase any property from, (iii) make
any Investment in, or (iv) enter into or amend any contract, agreement or
understanding with, or for the benefit of, any of its Related Persons (each a
"Related Person Transaction"), other than Related Person Transactions that are
no less favorable to the Issuer or such Restricted Subsidiary than those that
could be obtained in a comparable arm's length transaction by the Issuer or such
Restricted Subsidiary from an unrelated party; provided that the Issuer delivers
to the Trustee (A) with respect to any Related Person Transaction (or series of
Related Person Transactions which are similar or part of a common plan)
involving aggregate payments in excess of $5.0 million, a resolution of the
Board of Directors set forth in an Officers' Certificate certifying that such
Related Person Transaction complies with the preceding sentence and such Related
Person Transaction was approved by a majority of the disinterested members of
the Board of Directors of the Issuer and (B) with respect to any Related Person
Transaction (or series of Related Person Transactions which are similar or part
of a common plan) involving aggregate payments in excess of $10.0 million, an
affirmative opinion as to the fairness to the Issuer or such Restricted
Subsidiary, as the case may be, from a financial point of view issued by a
nationally recognized accounting, appraisal, investment banking or consulting
firm that is, in the judgment of the Board of Directors of the Issuer,
independent and qualified to render such opinion. The foregoing restrictions
shall not apply to: (i) any transactions between Wholly Owned Restricted
Subsidiaries of the Issuer, or between the Issuer and any Wholly Owned
Restricted Subsidiary of the Issuer, if such transaction is not otherwise
prohibited by the terms of this Indenture; (ii) Restricted Payments permitted
under Section 4.10; (iii) customary directors' fees, indemnification and similar
arrangements, employee salaries, bonuses or employment agreements, compensation
or employee benefit arrangements and incentive arrangements with any officer,
director or employee of the Issuer or any Restricted Subsidiary entered into in
the ordinary course of business (including customary benefits thereunder); (iv)
transactions undertaken pursuant to the Management Agreement and the Tax Sharing
Agreement; (v) the issue and sale by the Issuer to its stockholders of Equity
Interests other than Disqualified Stock; (vi) the incurrence of intercompany
Debt permitted pursuant to Section 4.12; (vii) customary indemnification and
similar arrangements with any officer, director or employee of Parent relating
to the business, operations or ownership of the Issuer; (viii) the pledge of
Equity Interests of Unrestricted Subsidiaries to support the Debt thereof; (ix)
transactions that are permitted by Section 5.01; (x) transactions effected as a
part of a Qualified Securitization Transaction; (xi) transactions with
customers, clients, suppliers, joint venture partners or purchasers or sellers
of goods and services, in each case in the ordinary course of business
(including, without limitation, pursuant to joint venture agreements) and
otherwise in compliance with the terms of this Indenture which are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party; and (xii) transactions undertaken on the Issue Date pursuant
to the Asset Drop Down (as defined in the Final Offering Memorandum).
46
SECTION 4.12 Limitation on Incurrence of Debt and Issuance of Preferred Stock.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Debt (including Acquired Debt) and
the Issuer will not issue any Disqualified Stock and will not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that if no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence thereof, the Issuer may incur Debt
(including Acquired Debt) or issue shares of Disqualified Stock and any
Guarantor may incur Debt (including Acquired Debt) or issue preferred stock if
the Consolidated Fixed Charge Coverage Ratio for the Issuer's most recently
ended four full fiscal quarters for which financial statements are available
immediately preceding the date on which such additional Debt is incurred or such
Disqualified Stock or preferred stock is issued would have been at least 2.0 to
1.0, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Debt had been incurred, or the
Disqualified Stock or preferred stock had been issued, as the case may be, at
the beginning of such four-quarter period.
(b) The provisions of Section 4.12(a) will not apply to the incurrence
of any of the following items of Debt (collectively, "Permitted Debt"):
(i) the incurrence by the Issuer or any of the Guarantors of
Debt under the Senior Credit Facility (or if the Senior Credit
Facility has matured or been terminated or repaid in whole or in part,
any other Credit Facility) in an aggregate principal amount at any
time outstanding not to exceed $165.0 million, which amount shall be
reduced by (A) any required permanent repayments pursuant to the
provisions of Section 4.16 (which are accompanied by a corresponding
permanent commitment reduction thereunder), (B) the aggregate amount
of any Debt constituting Limited Originator Recourse outstanding
pursuant to clause (xi) below and (C) the principal amount of Debt
outstanding pursuant to clause (x) below;
(ii) the incurrence by the Issuer and its Restricted
Subsidiaries of Existing Debt;
(iii) the incurrence by the Issuer or any of its Restricted
Subsidiaries of Debt represented by the Securities issued on the Issue
Date (or any Securities issued in exchange therefor) or any Guarantee;
(iv) the incurrence by the Issuer or any of its Restricted
Subsidiaries of Permitted Refinancing Debt in exchange for, or the net
proceeds of which are used to refund, refinance or replace, Debt that
was permitted by this Indenture to be incurred;
47
(v) the incurrence by the Issuer or any of its Restricted
Subsidiaries of intercompany Debt between or among the Issuer and any
of its Restricted Subsidiaries; provided, however, that (A) if the
Issuer or a Guarantor is the obligor on such Debt, such Debt is
expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the Securities or such Guarantor's
Guarantee, as the case may be, and (B) (1) any subsequent issuance or
transfer (other than any bona fide pledge under the Senior Credit
Facility) of Equity Interests that results in any such Debt being held
by a Person other than the Issuer or a Restricted Subsidiary and (2)
any sale or other transfer (other than any bona fide pledge under the
Senior Credit Facility) of any such Debt to a Person that is not
either the Issuer or a Restricted Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Debt by the Issuer or such
Subsidiary, as the case may be;
(vi) the incurrence by the Issuer or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose
of fixing or hedging interest rate risk with respect to any floating
rate Debt that is permitted by the terms of this Indenture to be
outstanding or for the purpose of fixing or hedging currency exchange
risk with respect to any currency exchanges;
(vii) Capitalized Lease Obligations and Purchase Money
Obligations of the Issuer and the Guarantors not to exceed $5.0
million in aggregate principal amount (or accrued value, as
applicable) at any time outstanding;
(viii) Guarantees by the Issuer of Debt of any Restricted
Subsidiaries otherwise permitted by this Section 4.12 and guarantees
by any of the Issuer's Restricted Subsidiaries of Debt of the Issuer
or any other Restricted Subsidiary permitted to be incurred under
Section 4.18;
(ix) Debt of the Issuer or any Restricted Subsidiary in
respect of performance bonds, bankers' acceptances, trade letters of
credit, workers' compensation or self-insurance, surety bonds and
guarantees provided by the Issuer or any Restricted Subsidiary in the
ordinary course of business;
(x) Debt of Foreign Restricted Subsidiaries incurred for
working capital purposes in an aggregate principal amount outstanding
at any one time not to exceed the sum of 85% of the net book value of
such Subsidiaries' accounts receivable determined in accordance with
GAAP and 60% of the net book value of their inventory determined in
accordance with GAAP and guarantees by Foreign Restricted Subsidiaries
of such Debt (which Debt shall reduce the aggregate Debt permitted
pursuant to clause (i) above in the manner contemplated thereby);
(xi) the incurrence by (A) a Securitization Entity of Debt in
a Qualified Securitization Transaction that is Non-Recourse Debt with
respect to the Issuer and
48
its other Restricted Subsidiaries (except for Standard Securitization
Undertakings and Limited Originator Recourse) or (B) the Issuer or any
Restricted Subsidiary of Debt constituting Limited Originator Recourse
(which Debt shall reduce the aggregate Debt permitted pursuant to
clause (i) above in the manner contemplated thereby);
(xii) Debt arising from agreements of the Issuer or a Restricted
Subsidiary of the Issuer providing for indemnification, adjustment of
purchase price, earn-out or other similar obligations, in each case,
incurred or assumed in connection with the disposition of any
business, assets or a Restricted Subsidiary of the Issuer, other than
guarantees of Debt incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition; and
(xiii) the incurrence by the Issuer or any of its Restricted
Subsidiaries of additional Debt in an aggregate principal amount (or
accrued value, as applicable) at any time outstanding, including all
Permitted Refinancing Debt incurred to refund, refinance or replace
any other Debt incurred pursuant to this clause (xiii), not to exceed
$40.0 million (which amount may, but need not, be incurred in whole or
in part under the Senior Credit Facility).
(c) For purposes of determining compliance with this Section 4.12, in
the event that an item of Debt meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xiii) of Section
4.12(b) or is entitled to be incurred pursuant to Section 4.12(a), the Issuer
shall, in its sole discretion, classify such item of Debt in any manner that
complies with this Section 4.12 and such item of Debt will be treated as having
been incurred pursuant to only one of such clauses of Section 4.12(b) or
pursuant to Section 4.12(a). Accrual of interest, the accretion of accrued value
and the payment of interest in the form of additional Debt will not be deemed to
be an incurrence of Debt for purposes of this Section 4.12.
SECTION 4.13 Payment Restrictions Affecting Restricted Subsidiaries.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) (A) pay dividends or make any other distributions
to the Issuer or any of its Restricted Subsidiaries (1) on its Capital Stock or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (B) pay any indebtedness owed to the Issuer or any of its Restricted
Subsidiaries, (ii) make loans or advances to the Issuer or any of its Restricted
Subsidiaries or (iii) transfer any of its properties or assets to the Issuer or
any of its Restricted Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (A) Existing Debt, (B) the Senior Credit Facility
as in effect on the date of this Indenture, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacement or
refinancings are not
49
materially more restrictive taken as a whole with respect to such dividend and
other payment restrictions than those contained in the Senior Credit Facility as
in effect on the date of this Indenture (as determined by the Board of Directors
of the Issuer in its reasonable and good faith judgment), (C) this Indenture and
the Securities, (D) applicable law, (E) any instrument governing Debt or Capital
Stock of a Person acquired by the Issuer or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such Debt was
incurred or such encumbrance or restriction was established in connection with
or in contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired, provided
that, in the case of Debt, such Debt was permitted by the terms of this
Indenture to be incurred, (F) customary non-assignment provisions in leases and
other agreements entered into in the ordinary course of business and consistent
with past practices, restricting assignment or restricting transfers of non-cash
assets, (G) Purchase Money Obligations for property acquired in the ordinary
course of business and other Liens permitted by this Indenture, in each case
that impose restrictions of the nature described in clause (iii) above on the
property so acquired (or subject to such Liens), (H) Debt permitted under
clause (x) of Section 4.12(b), (I) Permitted Refinancing Debt, provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Debt are not materially more restrictive taken as a whole than those
contained in the agreements governing the Debt being refinanced (as determined
by the Board of Directors of the Issuer in its reasonable and good faith
judgment), (J) contracts for the sale of assets or Equity Interests to the
extent that any such contract imposes restrictions of the nature described in
clause (iii) above on the property to be sold, (K) any pledge by the Issuer or a
Restricted Subsidiary of the Equity Interests of an Unrestricted Subsidiary to
support the Debt thereof, (L) secured Debt otherwise permitted to be incurred
pursuant to Section 4.17 that limits the right of the debtor to dispose of
the assets securing such Debt, (M) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business, (N) restrictions on
cash or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business, (O) any Debt 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, (P) other Debt of a Restricted Subsidiary that is a
Guarantor permitted to be incurred subsequent to the date of this Indenture
pursuant to Section 4.12; provided that any such restrictions are
ordinary and customary with respect to the type of Debt or preferred stock being
incurred or issued (under the relevant circumstances), or (Q) any encumbrances
or restrictions imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (A) through (P)
above, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, in the
good faith judgment of the Board of Directors of the Issuer, not materially more
restrictive with respect to such dividend and other payment restrictions than
those contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt.
50
(a) The Issuer will not, directly or indirectly, incur, create, issue,
assume, guarantee or otherwise become liable for any Debt that is expressly
subordinated or junior in right of payment to any Senior Debt of the Issuer and
senior in any respect in right of payment to the Securities; and
(b) The Issuer will not, directly or indirectly, permit any Guarantor
to incur, create, issue, assume, guarantee or otherwise become liable for any
Debt that is expressly subordinated or junior in right of payment to any
Guarantor Senior Debt of such Guarantor and senior in any respect in right of
payment to such Guarantor's Guarantee.
SECTION 4.15. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
Securities may require the Issuer to repurchase all or a portion of such
Holder's Securities pursuant to the offer described in Section 4.15(b) (the
"Change of Control Offer") at an offer price in cash equal to 101% of the
aggregate principal amount thereof and accrued and unpaid interest thereon, if
any, to the date of purchase (the "Change of Control Payment"). Prior to the
mailing of the notice referred to in Section 4.15(b), but in any event within 90
days following the date on which a Change of Control occurs, the Issuer
covenants to (i) repay in full in cash all outstanding Senior Debt under the
Senior Credit Facility (and terminate all commitments thereunder) and all other
Senior Debt the terms of which require repayment upon a Change of Control, or
(ii) obtain the requisite consents under the Senior Credit Facility and all such
other Senior Debt to permit the repurchase of the Securities as provided in this
Section 4.15. The Issuer shall first comply with the covenant in the immediately
preceding sentence before it shall be required to repurchase the Securities
pursuant to the provisions described in this Section 4.15; provided that the
Issuer's failure to comply with such covenant resulting in a failure to mail the
notice referred to in Section 4.15(b) shall constitute an Event of Default under
Section 6.01(3) and not under Section 6.01(2).
(b) Within 30 days following the date upon which a Change of Control
occurs (the "Change of Control Date"), the Issuer shall send, by first class
mail, a notice to each Holder of the Securities, 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 the Securities pursuant to the Change of Control Offer.
Such notice shall state:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Issuer to repurchase all or a portion (equal
to $1,000 principal amount or an integral multiple thereof) of such
Holder's Securities at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest
to the date of purchase (the "Change of Control Payment Date"), which
shall be a Business Day, specified in such notice, that is not earlier
than 30 days or later than 60 days from the date such notice is
mailed;
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(2) the amount of accrued and unpaid interest as of the Change of
Control Payment Date;
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Issuer defaults in the payment of the
purchase price for the Securities payable pursuant to the Change of
Control Offer, any Securities accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have Securities purchased pursuant to
a Change of Control Offer will be required to surrender the
Securities, with the forms entitled "Option of Holder to Elect
Purchase" on the reverse of the Securities completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the third Business Day prior to the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to
the Change of Control Payment Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount and
certificate number of the Security or Securities the Holder delivered
for purchase and a statement that such Holder is withdrawing his
election to have such Security or Securities purchased;
(7) that Holders whose Securities are purchased only in part will
be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered, provided that each
new Security will be in a principal amount of $1,000 or an integral
multiple thereof; and
(8) such other information as may be required by applicable laws
and regulations.
(c) On the Change of Control Payment Date, the Issuer will, to
the extent lawful, (i) accept for payment all Securities or portions thereof
properly tendered pursuant to the Change of Control Offer, (ii) deposit with the
Trustee an amount equal to the Change of Control Payment in respect of all
Securities or portions thereof so tendered, and (iii) deliver or cause to be
delivered to the Trustee the Securities so accepted pursuant to such Change of
Control Offer together with an Officers' Certificate stating the aggregate
principal amount of Securities or portions thereof being purchased by the
Issuer. The Paying Agent shall promptly mail to each Holder of Securities or
portions thereof accepted for payment an amount equal to the Change of Control
Payment for such Securities or portion thereof, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to such Holder
of Securities accepted for payment in part a new Security or Securities equal in
principal amount to any unpurchased portion of such Holder's Securities,
52
provided that each such new Security will be in a principal amount of $1,000 or
an integral multiple thereof, and any Security not accepted for payment in whole
or in part shall be promptly returned to the Holder of such Security. On and
after a Change of Control Payment Date, interest will cease to accrue on the
Securities or portions thereof accepted for payment, unless the Issuer defaults
in the payment of the purchase price therefor. The Issuer will announce the
results of the Change of Control Offer to Holders of the Securities on or as
soon as practicable after the Change of Control Payment Date.
(d) The Issuer will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 applicable to a Change of Control
Offer made by the Issuer and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
(e) The Issuer will comply with the requirements of Rule 14e-l
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 the Securities pursuant to a Change of Control Offer. To the
extent the provisions of any such rule conflict with the provisions of this
Section 4.15, the Issuer shall comply with the provisions of such rule and be
deemed not to have breached its obligations under this Section 4.15.
SECTION 4.16. Limitation on Asset Sales.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Issuer (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors of the Issuer set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor received by the Issuer or such Restricted Subsidiary is in the form of
cash, Cash Equivalents or properties and assets to be used in the Issuer's
business or Equity Interests in a Person that becomes a Restricted Subsidiary
and is received at the time of such disposition; provided that the amount of any
Senior Debt or Guarantor Senior Debt (as shown on the most recent consolidated
balance sheet of the Issuer) of the Issuer or any Guarantor that is assumed by
the transferee of any such assets pursuant to a customary novation agreement or
other agreement that releases or indemnifies the Issuer or such Guarantor from
further liability shall be deemed to be cash for purposes of this Section
4.16(a).
(b) Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Issuer or such Restricted Subsidiary may apply such Net Proceeds
at its option, (i) to permanently repay, reduce, or secure letters of credit in
respect of, Senior Debt and/or Guarantor Senior Debt (and to correspondingly
reduce commitments with respect thereto in the case of revolving borrowings),
and/or (ii) to the acquisition of a controlling interest in another business,
the making of a capital expenditure or Permitted Investment or the acquisition
of other assets, in each case, for use in the
53
same or a similar line of business as the Issuer or any Restricted Subsidiary
was engaged in on the date of such Asset Sale or reasonable extensions thereof.
Pending the final application of any such Net Proceeds, the Issuer or such
Restricted Subsidiary may temporarily reduce indebtedness under the Senior
Credit Facility (or any alternative or subsequent revolving credit agreement
where borrowings thereunder constitute Senior Debt and/or Guarantor Senior Debt)
or otherwise invest such Net Proceeds in any manner that is not prohibited by
this Indenture. Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the first sentence of this Section 4.16(b) will be
deemed to constitute "Excess Proceeds."
(c) Within 15 days after the date on which the aggregate amount of
Excess Proceeds exceeds $10.0 million, the Issuer will be required to make an
offer (an "Asset Sale Offer") to all Holders of Securities and holders of any
other Pari Passu Debt outstanding with provisions requiring the Issuer to make
an offer to purchase or redeem such indebtedness with the proceeds from any
Asset Sale as follows: (i) the Issuer will make a written offer to purchase from
all Holders of the Securities in accordance with the procedures set forth in
this Indenture in the maximum principal amount (expressed as a multiple of
$1,000) of Securities that may be purchased out of an amount (the "Security
Amount") equal to the product of such Excess Proceeds multiplied by a fraction,
the numerator of which is the outstanding principal amount of the Securities,
and the denominator of which is the sum of the outstanding principal amount of
the Securities and such Pari Passu Debt (subject to proration in the event such
amount is less than the aggregate Asset Sale Offered Price of all Securities
tendered), and (ii) to the extent required by such Pari Passu Debt to
permanently reduce the principal amount of such Pari Passu Debt, the Issuer will
make an offer to purchase or otherwise repurchase or redeem Pari Passu Debt (an
"Asset Sale Pari Passu Offer") in an amount (the "Pari Passu Debt Amount") equal
to the excess of the Excess Proceeds over the Security Amount; provided that in
no event will the Issuer be required to make an Asset Sale Pari Passu Offer in a
Pari Passu Debt Amount exceeding the principal amount of such Pari Passu Debt
plus the amount of any premium required to be paid to repurchase such Pari Passu
Debt. The offer price for the Securities will be payable in cash in an amount
equal to 100% of the principal amount of the Securities, plus accrued and unpaid
interest, if any, to the date (the "Asset Sale Offer Date") such Asset Sale
Offer is consummated (the "Asset Sale Offered Price"). To the extent that the
aggregate Asset Sale Offered Price of the Securities tendered pursuant to the
Asset Sale Offer is less than the Security Amount relating thereto or the
aggregate amount of Pari Passu Debt that is purchased in an Asset Sale Pari
Passu Offer is less than the Pari Passu Debt Amount, the Issuer may use any
remaining Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Securities and Pari Passu Debt
surrendered by holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Securities to be purchased on a pro rata basis. Upon
the completion of the purchase of all the Securities tendered pursuant to an
Asset Sale Offer and the completion of a Pari Passu Offer, the amount of Excess
Proceeds, if any, shall be reset at zero.
(d) If the Issuer becomes obligated to make an Asset Sale Offer
pursuant to Section 4.16(c), the Securities and the Pari Passu Debt shall be
purchased by the Issuer, at the option of the holders thereof, in whole or in
part in integral multiples of $1,000, on a date that is not earlier
54
than 30 days and not later than 60 days from the date the notice of the Asset
Sale Offer is given to holders, or such later date as may be necessary for the
Issuer to comply with the requirements under the Exchange Act.
(e) The Issuer will comply with the requirements of Rule 14e-1
under the Exchange Act and any other applicable securities laws or regulations
in connection with an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.16, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.16 by virtue
thereof.
SECTION 4.17. Limitation on Liens.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist
any Lien (other than Permitted Liens) that secures Debt or trade payables unless
(i) in the case of Liens securing Subordinated Debt, the Securities are secured
on a senior basis to the obligations so secured until such time as such
obligations are no longer secured by a Lien and (ii) in the case of Liens
securing obligations under Pari Passu Debt, the Securities are equally and
ratably secured with the obligations so secured until such time as such
obligations are no longer secured by a Lien.
SECTION 4.18. Guarantees by Restricted Subsidiaries.
(a) The Issuer 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 Debt of the Issuer or any other Restricted Subsidiary (other than any
guarantee by a Foreign Restricted Subsidiary of Debt of another Foreign
Restricted Subsidiary permitted under Section 4.12) unless, in any such case (i)
such Restricted Subsidiary, if it is not a Guarantor, executes and delivers a
supplemental indenture to this Indenture, providing a Guarantee and (ii) (A) if
any such assumption, guarantee or other liability of such Restricted Subsidiary
is provided in respect of Senior Debt or Guarantor Senior Debt, the guarantee or
other instrument provided by such Restricted Subsidiary in respect of such
Senior Debt or Guarantor Senior Debt may be superior to the Guarantee pursuant
to subordination provisions no less favorable in any material respect to the
Holders than those contained in this Indenture and (B) if such assumption,
guarantee or other liability of such Restricted Subsidiary is provided in
respect of Debt that is expressly subordinated to the Securities, the guarantee
or other instrument provided by such Restricted Subsidiary in respect to such
subordinated Debt shall be subordinated to the Guarantee pursuant to
subordination provisions no less favorable in any material respect to the
Holders than those contained in this Indenture.
(b) Notwithstanding Section 4.18(a), any such Guarantee by a
Restricted Subsidiary of the Securities pursuant to Section 4.18(a) 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
55
Subsidiary from its liability in respect of the Debt in connection with which
such Guarantee was executed and delivered pursuant to Section 4.18(a) (including
any Debt in respect of the Senior Credit Facility); or (ii) any sale or other
disposition (by merger or otherwise) to any Person which is not a Restricted
Subsidiary of the Issuer of all of the Issuer'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 Debt so
guaranteed; or (iii) such Guarantor becoming an Unrestricted Subsidiary in
accordance with this Indenture.
SECTION 4.19. Conduct of Business of the Issuer and Its Restricted Subsidiaries.
The Issuer and its Restricted Subsidiaries will not engage in
any businesses which are not the same, similar or related to the businesses in
which the Issuer and its Restricted Subsidiaries are engaged as of the Issue
Date (or any reasonable extension or expansion thereof), except to such extent
as would not be material to the Issuer and its Restricted Subsidiaries taken as
a whole.
SECTION 4.20. Guarantors.
(a) So long as any Securities remain outstanding, any Restricted
Domestic Subsidiary shall (i) execute and deliver to the Trustee a supplemental
indenture in form reasonably satisfactory to the Trustee pursuant to which such
Restricted Domestic Subsidiary shall unconditionally guarantee all of the
Issuer's obligations under the Securities and this Indenture on the terms set
forth in this Indenture and (ii) deliver to the Trustee an Opinion of Counsel
that such supplemental indenture has been duly authorized, executed and
delivered by such Restricted Domestic Subsidiary and constitutes a legal, valid,
binding and enforceable obligation of such Restricted Domestic Subsidiary.
Thereafter, such Restricted Domestic Subsidiary shall be a Guarantor for all
purposes of this Indenture.
(b) If all the Capital Stock of any Guarantor is sold to a Person
(other than the Issuer or any of its Restricted Subsidiaries) and the Net
Proceeds from such Asset Sale are used in accordance with the terms of Section
4.16, then such Guarantor will be released and discharged from all of its
obligations under its Guarantee of the Securities and this Indenture.
SECTION 4.21. Rule 144A Information Requirement.
The Issuer will furnish to the Holders or beneficial holders of the
Securities and prospective purchasers of Securities designated by the Holders of
Securities, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act for so long as is required
for an offer or sale of the Securities to qualify for an exemption under Rule
144A.
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SECTION 4.22. Issuance and Sale of Capital Stock of Restricted Subsidiaries.
The Issuer (i) will not, and will not permit any of its
Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise dispose
of any Capital Stock of any Restricted Subsidiary to any Person (other than to
the Issuer or a Wholly Owned Restricted Subsidiary) and (ii) will not permit any
Restricted Subsidiary to issue any of its Capital Stock to any Person other than
to the Issuer or a Wholly Owned Restricted Subsidiary, in each case unless the
Net Proceeds from such transfer, sale or other disposition are applied in
accordance with Section 4.16.
SECTION 4.23. Limitation on Sale and Lease-Back Transactions.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, enter into any Sale and Lease-Back Transaction; provided that
the Issuer or any Guarantor may enter into a Sale and Lease-Back Transaction if:
(i) the Issuer could have (A) incurred Debt in an amount equal to the
Attributable Debt relating to such Sale and Lease-Back Transaction pursuant to
the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.12(a)
and (B) incurred a Lien to secure such Debt pursuant to Section 4.17; (ii) the
gross cash proceeds of such Sale and Lease- Back Transaction are at least equal
to the fair market value (as determined in good faith by the Board of Directors
pursuant to a Board Resolution) of the property that is the subject of such Sale
and Lease-Back Transaction; and (iii) the transfer of assets in such Sale and
Lease-Back Transaction is permitted by, and the Issuer applies the proceeds of
such transaction in compliance with, Section 4.16.
SECTION 4.24. Payments for Consent.
Neither the Issuer nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or agreed to be paid to all Holders of the Securities that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement, which solicitation documents must
be mailed to all Holders of the Securities a reasonable length of time prior to
the expiration of the solicitation.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation or Sale of Assets.
(a) The Issuer will not consolidate or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of the Issuer's consolidated properties
57
or assets in one or more related transactions, to another corporation or other
Person unless: (i) the Issuer is the surviving corporation or the Person (if
other than the Issuer) formed by such consolidation or into which the Issuer is
merged or the Person that acquires by conveyance, transfer or lease
substantially all of the properties and assets of the Issuer (the "Surviving
Entity") shall be a corporation organized and validly existing under the laws of
the United States or any state thereof or the District of Columbia; (ii) if the
Issuer is not the surviving corporation, the Surviving Entity assumes all the
obligations of the Issuer under the Securities and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee; (iii)
immediately after such transaction, no Default or Event of Default exists; (iv)
except in the case of a merger of the Issuer with or into a Wholly Owned
Restricted Subsidiary of the Issuer or a merger entered into solely for the
purpose of reincorporating the Issuer in another jurisdiction, the Issuer or the
Surviving Entity, as the case may be, (A) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of the Issuer immediately preceding the transaction and (B) will, at the
time of such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Debt pursuant to the
Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.12(a); and
(v) the Issuer 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) Each Guarantor (other than any 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 4.16)
will not, and the Issuer will not cause or permit any Guarantor to, consolidate
with or merge with or into, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets to any
Person other than the Issuer or any other Guarantor unless: (i) such Guarantor
is the surviving corporation or the Person (if other than a Guarantor) formed by
such consolidation or into which such Guarantor is merged or the Person that
acquires by conveyance, transfer or lease substantially all of the properties
and assets of such Guarantor shall be a corporation organized and existing under
the laws of the United States or any State thereof or the District of Columbia;
(ii) such entity or Person formed by or surviving any such consolidation or
merger (if other than the Guarantor) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all of the obligations of the Guarantor under the Guarantee
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately after giving effect to such transaction, no Default
or Event of Default exists; and (iv) immediately after giving effect to such
transaction, the Issuer could satisfy the provisions of clause (iv) of Section
5.01(a). Any merger or consolidation of a Guarantor with and into the Issuer
(with the Issuer being the surviving entity) or another Guarantor need only
comply with clauses (iv)(A) and (v) of Section 5.01(a).
SECTION 5.02. Successor Corporation Substituted.
58
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of the Issuer in accordance with Section
5.01, in which the Issuer is not the continuing corporation, the successor
Person formed by such consolidation or into which the Issuer is merged or to
which such sale, assignment, transfer or other disposition is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture and the Securities with the same effect as if such
successor had been named as the Issuer herein.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default":
(1) the failure to pay interest on any Securities when the same
becomes due and payable and the default continues for a period of 30 days
(whether or not such payment shall be prohibited by Article Ten);
(2) the failure to pay the principal of or premium, if any, on any
Securities, when such principal or premium, if any, becomes due and
payable, at maturity, upon acceleration, upon optional or mandatory
redemption, upon required repurchase or otherwise (including the failure to
make a payment to repurchase Securities tendered pursuant to a Change of
Control Offer or an Asset Sales Offer) (whether or not such payment shall
be prohibited by Article Ten);
(3) the failure to conform or comply with any covenant, agreement or
warranty contained in Sections 4.15 or 4.16 or Article Five, or the
corresponding provisions of the Securities, for 30 days after notice
thereof has been given to the Issuer by the Trustee or by the Holders of at
least 25% in principal amount of the then outstanding Securities;
(4) the failure to conform or comply with any other covenant,
agreement or warranty in the Securities or this Indenture for 60 days after
notice thereof has been given to the Issuer by the Trustee or by the
Holders of at least 25% in principal amount of the then outstanding
Securities;
(5) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect or any Guarantor that is a Significant Subsidiary denies
its liability under its Guarantee (other than by reason of a release of a
Guarantee in accordance with the terms of this Indenture or such
Guarantee);
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(6) a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any Debt
for money borrowed by the Issuer or any of its Restricted Subsidiaries
(other than a Securitization Entity) (or the payment of which is guaranteed
by the Issuer or any of its Restricted Subsidiaries (other than a
Securitization Entity)) whether such Debt or guarantee now exists, or is
created after the date of this Indenture, which default (a) is caused by a
failure to pay principal of such Debt at the final Stated Maturity thereof
(giving effect to any applicable grace periods and any extensions thereof)
(a "Payment Default") or (b) results in the acceleration of such Debt prior
to its final Stated Maturity and, in the case of either clause (a) or (b),
the principal amount of any such Debt, together with the principal amount
of any other such Debt under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $7.5 million or more;
(7) the failure by the Issuer or any of its Significant Subsidiaries
to pay final judgments aggregating in excess of $7.5 million (to the extent
not covered by third party insurance as to which the insurance company has
acknowledged coverage), which judgments are not paid, discharged or stayed
for a period of 60 days after their entry;
(8) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the Issuer
or any of its Significant Subsidiaries in an involuntary case or proceeding
under any applicable Bankruptcy Law or (b) a decree or order adjudging the
Issuer or any of its Significant Subsidiaries bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Issuer or any of its Significant Subsidiaries under any
applicable federal, state or foreign law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer or any of its Significant Subsidiaries or of
substantially all of their respective properties, or ordering the winding
up or liquidation of their affairs, and any such decree or order for relief
shall continue to be in effect, or any such other decree or order shall be
unstayed and in effect, for a period of 60 days, provided that if any order
is dismissed on appeal then such Event of Default shall be deemed cured; or
(9) (a) the Issuer or any of its Significant Subsidiaries commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent, (b) the
Issuer or any of its Significant Subsidiaries consents to the entry of a
decree or order for relief in respect of the Issuer or such Significant
Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, (c) the Issuer or any of its Significant
Subsidiaries files a petition or answer or consent seeking reorganization
or relief under any applicable federal, state or foreign bankruptcy law,
(d) the Issuer or any of its Significant Subsidiaries (x) consents to the
filing of such petition or the appointment of or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer or such Significant Subsidiary or of
substantially all of their respective property, or (y) makes an assignment
for the benefit of
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creditors or (e) the Issuer or any of its Significant Subsidiaries takes
any corporate action in furtherance of any such actions in this paragraph
(9).
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuer with the
intention of avoiding payment of the premium that the Issuer would have had to
pay if the Issuer then had elected to redeem the Securities pursuant to the
optional redemption provisions of this Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Securities. If an Event of Default occurs by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the
Issuer with the intention of avoiding the prohibition on redemption of the
Securities, then the premium specified in this Indenture shall also become
immediately due and payable to the extent permitted by law upon the acceleration
of the Securities. If an Event of Default occurs prior to August 1, 2003, by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Issuer with the intention of avoiding the prohibition on redemption of
the Securities prior to such date, then the amount payable for purposes of this
paragraph will be 110.0%, expressed as a percentage of the amount that would
otherwise be due but for the provisions of this sentence, plus accrued interest,
if any, to the date of payment.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
paragraph (8) or (9) of Section 6.01 with respect to the Issuer, any Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidary) occurs and is continuing and has not been
waived pursuant to Section 6.04, the Trustee or the Holders of at least 25% in
principal amount of the Securities then outstanding may declare the aggregate
principal amount of the Securities outstanding, together with accrued but unpaid
interest, if any, on all Securities to be due and payable by notice in writing
to the Issuer and the Trustee specifying the respective Event of Default and
that it is a "notice of acceleration" (the "Acceleration Notice"), and, if the
applicable Event of Default is then continuing, the Securities outstanding (i)
shall become immediately due and payable or (ii) if there are any amounts
outstanding under the Senior Credit Facility, shall become due and payable upon
the first to occur of an acceleration under the Senior Credit Facility or five
Business Days after receipt by the Issuer and the Representative under the
Senior Credit Facility of such Acceleration Notice (unless all Events of Default
specified in such Acceleration Notice have been cured or waived). In the event
of a declaration of acceleration because an Event of Default set forth in
paragraph (6) of Section 6.01 has occurred and is continuing, such declaration
of acceleration shall be automatically annulled if (i) the missed payments in
respect of the applicable Debt have been paid or if the holders of the Debt that
is subject to acceleration have rescinded their declaration of acceleration, in
each case within 30 days thereof and (ii) all existing Events of Default, except
non-payment of principal or interest which have become due solely because of the
acceleration of the Securities, have been cured or waived. If an Event of
Default specified in paragraph (8) or (9) of Section 6.01 occurs and is
continuing with respect to the Issuer, any Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all unpaid principal, premium, if any, and accrued interest on the
Securities
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then outstanding 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.
The Holders of a majority in principal amount of the Securities then outstanding
(by written notice to the Trustee and the Issuer) may rescind and cancel a
declaration of acceleration and its consequences if (i) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction, (ii)
all existing Events of Default have been cured or waived, except non-payment of
the principal or interest on the Securities which have become due solely by such
declaration of acceleration, (iii) to the extent the payment of such interest is
lawful, interest (at the same rate as specified in the Securities) on overdue
installments of interest and overdue payments of principal and premium, if any,
which has become due otherwise than by such declaration of acceleration, has
been paid, and (iv) in the event of the cure or waiver of a Default or Event of
Default of the type described in paragraphs (8) and (9) of Section 6.01, the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
that such Default or Event of Default has been cured or waived and the Trustee
shall be entitled to conclusively rely upon such Officers' Certificate and
Opinion of Counsel. 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 principal of, premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Prior to the declaration of acceleration of the Securities and subject
to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the
outstanding Securities by notice to the Trustee may waive an existing Default or
Event of Default and its consequences, except (i) a Default or Event of Default
specified in Section 6.01(1) or (2) (which may only be waived with the consent
of each Holder of Securities affected) or (ii) in respect of any covenant or
provision hereunder which cannot be modified or amended without the consent of
the Holder of each Security outstanding.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the
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Trustee or exercising any trust or power conferred on it, including, without
limitation, any remedies provided for in Section 6.03. Subject to Section 7.01,
however, the Trustee may, in its discretion, refuse to follow any direction that
conflicts with any law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of another Securityholder, or that may involve
the Trustee in personal liability; provided that the Trustee may take any other
action deemed proper by the Trustee, in its discretion, which is not
inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or
the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) Holders of at least 25% in principal amount of the outstanding
Securities 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 reasonably 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
(5) during such 45-day period the Holders of a majority in principal
amount of the outstanding Securities 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. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of, premium, if any,
and interest on such Security, on or after the respective due dates expressed in
such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in paragraphs (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment
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in its own name and as trustee of an express trust against the Issuer or any
other obligor on the Securities for the whole amount of principal, premium 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 at the rate set forth in the Securities 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, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Issuer or
any other obligor upon the Securities, any of their respective creditors or any
of their respective 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 Securityholder 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 Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. The Issuer's payment obligations under this 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 Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 6.10. Priorities.
Subject to Article Ten, if the Trustee collects any money pursuant to
this Article Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the Issuer
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Securities for
principal (including premium) and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal (including premium) and interest, respectively;
and
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Fourth: to the Issuer or any other obligor on the Securities, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Issuer, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Securities.
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 Security and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the Issuer, the
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 a Default or an Event of Default actually known to the Trustee
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in its exercise thereof as a prudent person would exercise or use under
the circumstances in the conduct of its own affairs.
(b) Except during the continuance of a Default or an Event of Default
actually known to the Trustee:
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(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture and the TIA and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture that are
adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates (including Officers'
Certificates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, as
to any certificates or opinions which are required by any provision of this
Indenture to be delivered or provided to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture, but not to verify the
contents thereof.
(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 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.
(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
Issuer. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
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(a) The Trustee may request and 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 investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 13.04 and 13.05. The Trustee shall
not be liable for and shall be fully protected in respect of 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 or attorney
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 stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any
Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice to
the Issuer, to examine the books, records, and premises of the Issuer,
personally or by agent or attorney.
(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 of the Securities pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request,
order or direction.
(g) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability with respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Issuer, any
Subsidiary of the Issuer, or their respective
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Affiliates, with the same rights it would have if it were not Trustee, subject
to Section 7.10. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Disclaimer of Trustee.
The Trustee does not make any representation as to the validity,
effectiveness or adequacy of this Indenture or the Securities, and it shall not
be accountable for the Issuer's use of the proceeds from the Securities, the
Trustee shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement of the Issuer in this Indenture, the Securities
other than the Trustee's certificate of authentication or any document issued in
connection with the sale of the Securities.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 90 days after such Default or Event
of Default occurs. Except in the case of a Default or an Event of Default in
payment of principal of, or interest on, any Security, including an accelerated
payment and the failure to make payment on the Change of Control Payment Date
pursuant to a Change of Control Offer or on the Asset Sale Offer Purchase Date
pursuant to an Asset Sale Offer, and, except in the case of a failure to comply
with Article Five, 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. This Section 7.05
shall be in lieu of the proviso to (S)315(b) of the TIA and such proviso to
(S)315(b) of the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default or Event of Default other than (i) any Event of Default
occurring pursuant to Section 6.01(1), 6.01(2) or 4.01; or (ii) any Default or
Event of Default of which a Trust Officer shall have received written
notification or obtained actual knowledge.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 of each year beginning with May 15, 1999,
the Trustee shall, to the extent that any of the events described in TIA (S)
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 (S)
313(a). The Trustee also shall comply with TIA (S)(S) 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Issuer and filed with the SEC and each stock exchange, if any, on
which the Securities are listed.
The Issuer shall promptly notify the Trustee if the Securities become
listed on any stock exchange and the Trustee shall comply with TIA (S) 313(d).
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SECTION 7.07. Compensation and Indemnity.
The Issuer shall pay to the Trustee in its capacity as such from time
to time such compensation as may be agreed upon in writing by the Issuer and the
Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. Subject to the limitations set
forth in the following paragraph, the Issuer shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by it in connection with the performance of its duties and the
discharge of its obligations under this Indenture. Such expenses shall include
the reasonable fees and expenses of the Trustee's agents and counsel.
The Issuer shall indemnify the Trustee and its agents, employees,
officers, stockholders and directors for and hold them harmless against any
loss, liability, damage, claim or expense incurred by them except for such loss,
liability, damage, claims or expenses or actions to the extent caused by any
negligence, bad faith or willful misconduct on any of their part, arising out of
or in connection with the acceptance or administration of this trust including
the reasonable costs and expenses of defending themselves against 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 Issuer promptly of any
claim asserted against the Trustee, its agents, employees, officers,
stockholders or directors for which indemnity may be sought. The Issuer shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel and the Issuer shall pay the reasonable fees and
expenses of one such counsel. The Issuer need not pay for any settlement made
without its written consent, which consent shall not be unreasonably withheld.
The Issuer need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee, its agents, employees,
officers, stockholders or directors through its negligence, bad faith or willful
misconduct.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all assets or money held or
collected by the Trustee, in its capacity as Trustee, as the case may be, except
assets or money held in trust to pay principal of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) occurs, such expenses and the
compensation for such services shall be paid to the extent allowed under any
Bankruptcy Law.
The provisions of this Section 7.07 shall survive the resignation or
removal of the Trustee, the discharge of the Issuer's obligations under Article
Eight or any rejection or the termination of this Indenture under any Bankruptcy
Law or otherwise.
SECTION 7.08. Replacement of Trustee.
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The Trustee may resign by so notifying the Issuer in writing. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Issuer in writing and the Trustee and may
appoint a successor trustee. The Issuer may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Promptly 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. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the resulting, surviving or
70
transferee Person without any further act shall, if such resulting, surviving or
transferee Person is otherwise eligible hereunder, be the successor Trustee;
provided that such Person 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 (S)(S) 310(a)(1) and 310(a)(2). The Trustee (or in the case
of a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA (S) 310(a)(2). The Trustee shall
comply with TIA (S) 310(b); provided, however, that there shall be excluded from
the operation of TIA (S) 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Issuer are outstanding, if the requirements for such exclusion set forth in
TIA (S) 310(b)(1) are met. The provisions of TIA (S) 310 shall apply to the
Issuer and any other obligor of the Securities.
SECTION 7.11. Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein. The
provisions of TIA (S) 311 shall apply to the Issuer and any other obligor of the
Securities.
ARTICLE EIGHT
DISCHARGE OF THIS INDENTURE; DEFEASANCE
SECTION 8.01. Option to Effect Defeasance or Covenant Defeasance.
The Issuer may, at its option, at any time, with respect to the
Securities, elect to have either Section 8.02 or Section 8.03 be applied to all
Securities upon compliance with the conditions set forth below in this Article
Eight.
SECTION 8.02. Defeasance and Discharge.
Upon the Issuer's exercise under Section 8.01 of the option applicable
to this Section 8.02, the Issuer shall be deemed to have been discharged from
its obligations with respect to all Securities on the date the conditions set
forth below are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Issuer shall be deemed to have paid and discharged the
entire amount of Debt represented by the Securities, which shall thereafter be
deemed to be
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"outstanding" until paid in full in cash only for the purposes of Section 8.05
and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all its other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until the Securities are paid in full in cash
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Securities to receive solely from the trust fund described in Section 8.04 and
as more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest on such Securities when such payments are
due, (B) the Issuer's obligations with respect to such Securities under Sections
2.03 through and including 2.11 and 2.14, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Issuer's obligations in
connection therewith and (D) this Article Eight. Subject to compliance with
this Article Eight, the Issuer may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 with respect
to the Securities.
SECTION 8.03. Covenant Defeasance.
Upon the Issuer's exercise under Section 8.01 of the option applicable to this
Section 8.03, the payment of the Securities may not be accelerated pursuant to
Section 6.02 upon, or as a result of, an Event of Default set forth in Sections
6.01(3), (4), (5) or (6) with respect to the Securities on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
outstanding for financial accounting purposes). Except as specified above, the
remainder of this Indenture and the Securities shall be unaffected by a covenant
defeasance.
SECTION 8.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
8.02 or Section 8.03 to the Securities:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 who shall agree to comply with the provisions of this
Article Eight applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
cash in U.S. Dollars in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, cash in U.S. Dollars in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which shall be
applied by the Trustee (or other qualifying
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trustee) to pay and discharge, (i) the principal of (and premium, if any)
and interest on the Securities on the Stated Maturity of such principal or
installment of principal (and premium, if any) or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to the
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of the Securities; provided
that the Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such U.S. Government Obligations to said payments with
respect to the Securities. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States of
America for the timely payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act), as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt; provided that (except
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(b) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or would
occur as a consequence thereof (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or,
insofar as Section 6.01(8) or 6.01(9) is concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(c) No event or condition shall exist that, pursuant to the
provisions of Section 10.02 or 10.03, would prevent the Issuer from making
payments of the principal of (and premium, if any) or interest on the
Securities on the date of such deposit or at any time during the period
ending on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period).
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument to which the Issuer or any of its Restricted
Subsidiaries is a party or by which the Issuer or any of its Restricted
Subsidiaries is bound.
(e) In the case of an election under Section 8.02, the Issuer shall
have delivered to the Trustee an Opinion of Counsel in the United States
stating that (x) the Issuer has
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received from, or there has been published by, the Internal Revenue Service
a ruling or (y) otherwise since the date hereof, there has been a change in
the applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(f) In the case of an election under Section 8.03, the Issuer shall
have delivered to the Trustee an Opinion of Counsel in the United States to
the effect that the Holders of the Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(g) In the case of an election under either Section 8.02 or 8.03, the
Issuer shall have delivered to the Trustee an Opinion of Counsel in the
United States to the effect that after the 91st day following the date of
such deposit, such trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(h) In the case of an election under either Section 8.02 or 8.03, the
Issuer shall represent to the Trustee that the deposit made by the Issuer
pursuant to its election under Section 8.02 or 8.03 was not made by the
Issuer with the intent of preferring the Holders over other creditors of
the Issuer or with the intent of defeating, hindering, delaying or
defrauding creditors of the Issuer or others.
(i) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 8.02 or the covenant defeasance under Section 8.03
(as the case may be) have been complied with.
SECTION 8.05. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of Section 12 of the Securities, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent, to the Holders of such Securities of all
sums due and to become due thereon in respect of principal (and premium, if any)
and interest, but such money need not be segregated from other
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funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust are not subject to Article Ten or Article Twelve
hereof.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 8.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Securities.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer's
request together with an Officers' Certificate any money or U.S. Government
Obligations held by it as provided in Section 8.04 which are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance. If any money or U.S. Government
Obligations held by the Trustee for the payment of principal or interest remains
unclaimed on the first anniversary of the Maturity Date of the Securities, the
Trustee shall promptly, or shall cause the prompt, return of such money or U.S.
Government Obligations. After the return of such money or U.S. Government
Obligations, all liability of the Trustee with respect to such money or U.S.
Government Obligations shall cease.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.02 or 8.03, as the case may be, by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's and the Guarantors'
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03,
as the case may be, until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03, as the case may
be; provided, however, that, if the Issuer makes any payment of principal of (or
premium, if any) or interest on any Security following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Issuer and the Guarantors, when authorized by a Board Resolution,
and the Trustee, together, may amend or supplement this Indenture or the
Securities without notice to or consent of any Holder:
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(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any of the Holders in any material respect;
(2) to comply with Article V of this Indenture;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any change that would provide any additional rights or
benefits to the Holders of the Securities or that does not adversely affect
the legal rights under this Indenture of any such Holder;
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act;
(6) to provide for the issuance of the Exchange Securities (which
will have terms identical in all material respects to the Securities issued
on the Issue Date except that the transfer restrictions contained in the
Securities issued on the Issue Date will be modified or eliminated, as
appropriate), and which will be treated together with any outstanding
Securities issued on the Issue Date, as a single issue of Securities;
(7) to reflect the release of a Guarantor from its Obligations with
respect to its Guarantee or to add a Guarantor, in each case in accordance
with the terms of this Indenture;
(8) to surrender any right or power conferred on the Issuer or any
Guarantor in accordance with the terms of this Indenture; or
(9) to secure the Securities in accordance with Section 4.17;
provided that the Issuer has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Issuer and the Guarantors, when
authorized by a Board Resolution, and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in principal amount of
the outstanding Securities may amend or supplement this Indenture or the
Securities, without notice to any other Holders. Subject to Sections 6.04 and
6.07, the Holder or Holders of a majority in aggregate principal amount of the
outstanding Securities may waive compliance by the Issuer or the Guarantors with
any provision of this Indenture, the Securities or the Guarantees without notice
to any other Holders.
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Notwithstanding any other provision of this Indenture or the
Securities, no amendment, supplement or waiver, including a waiver pursuant to
Section 6.04, shall, directly or indirectly, without the consent of each Holder
of each Security affected thereby:
(1) reduce the principal amount of the Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any
Security, or alter the provisions with respect to the redemption or
repurchase of the Securities in a manner adverse to the Holders of the
Securities (other than provisions relating to Section 4.15);
(3) reduce the rate of or change the time for payment of interest on
any Security;
(4) waive a Default or Event of Default in the payment of principal
of, premium, if any, or interest on, the Securities (except that Holders of
at least a majority in aggregate principal amount of the then outstanding
Securities may (a) rescind an acceleration of the Securities that resulted
from a non-payment default, and (b) waive the payment default that resulted
from such acceleration);
(5) make any Security payable in money other than that stated in the
Securities;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of, or premium, if any, or interest on, the
Securities;
(7) waive a redemption payment with respect to any Security;
(8) make any change to the subordination provisions of this Indenture
that adversely affects Holders;
(9) release any Guarantor from any of its obligations under its
Guarantee or hereunder other than in accordance with the terms hereunder;
or
(10) make any change in the foregoing amendment and waiver provisions.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective (as provided in Section 9.04), the Issuer shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver.
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SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
No amendment of this Indenture shall adversely affect in any material
respect the rights of any holder of Senior Debt under Article Ten or Guarantor
Senior Debt under Article Twelve without the consent of such holder.
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 Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of his Security by
notice to the Trustee or the Issuer received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver (at which time such
amendment, supplement or waiver shall become effective).
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 120 days after
such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (6) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal of,
premium, if any, and interest on a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates without the consent of such
Holder.
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SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Issuer or the Trustee
so determine, the Issuer in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article Nine;
provided that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense of
the Trustee.
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinated to Senior Debt.
The Issuer, for itself and its successors, covenants and agrees and
the Trustee and each Holder of the Securities, by its acceptance thereof,
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article Ten; and the Trustee and each Person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all Obligations on the
Securities by the Issuer 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 of all Obligations on the Senior Debt; that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Debt, and that each holder of Senior Debt, whether now
outstanding or hereafter created, incurred, assumed or guaranteed, shall be
deemed to have acquired such Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Securities.
SECTION 10.02. No Payment on Securities in Certain Circumstances.
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(a) Neither the Issuer nor any Person on behalf of the Issuer may
make any payment of any kind or character upon or in respect of the Securities
(except from the trust described under Article Eight) if (i) a default in the
payment of the principal of, premium, if any, interest on, unpaid drawings for
letters of credit issued in respect of, or regularly accruing fees with respect
to, any Designated Senior Debt occurs and is continuing or (ii) any other
default occurs and is continuing with respect to Designated Senior Debt that
permits holders of the Designated Senior Debt as to which such default relates
to accelerate its maturity and, in the case of clause (ii), the Trustee receives
a notice of such default (a "Payment Blockage Notice") from the Representative
of any Designated Senior Debt. Payments on the Securities may and shall be
resumed (A) in the case of a payment default described in clause (i) above, upon
the date on which such default is cured or waived and (B) in case of a default
described in clause (ii) above, the earliest of (1) the date on which all such
defaults have been cured or waived, (2) 179 days after the date on which the
applicable Payment Blockage Notice is received, (3) the date such Designated
Senior Debt shall have been paid in full in cash or (4) the date such Payment
Blockage Period shall have been terminated by written notice to the Trustee from
the Representative of the Designated Senior Debt initiating such Payment
Blockage Period, after which, in the case of clauses (1), (2), (3) and (4), the
Issuer shall resume making any and all required payments in respect of the
Securities, including any payments not made to the Holders of the Securities
during the Payment Blockage Period due to the foregoing prohibitions, unless the
provisions described in clause (i) above or the provisions of Section 10.03 are
then applicable. No new Payment Blockage Period may be commenced unless and
until 360 days have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice. No default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee shall be, or be made,
the basis for a subsequent Payment Blockage Notice unless such default shall
have been cured or waived for a period of not less than 90 consecutive days (it
being acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such Payment
Blockage Period, that, in either case, would give rise to such a default
pursuant to any provision under which such default previously existed or was
continuing shall constitute a new 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 for the benefit of, and shall be
paid over or delivered to, the holders of Senior Debt (pro rata to such holders
on the basis of the respective amount of Senior Debt held by such holders) or
their respective Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on the Senior Debt, if any, received from the holders of Senior Debt (or
their Representatives) or, if such information is not received from such holders
or their Representatives, from the Issuer and only amounts included in the
information provided to the Trustee shall be paid to the holders of Senior Debt.
(c) Nothing contained in this Article Ten shall limit the right of
the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Senior Debt thereafter
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due or declared to be due shall first be paid in full in cash before the Holders
are entitled to receive any payment with respect to Obligations on the
Securities.
SECTION 10.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets of the Issuer of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Issuer or
in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Issuer or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt
(including interest accruing after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt whether or not such interest is
an allowed claim in any such proceeding) shall first be paid in full in cash
before any payment or distribution of any kind or character is made on account
of any Obligations on the Securities, or for the acquisition of any of the
Securities for cash or property or otherwise (except that Holders of the
Securities may receive Permitted Junior Securities and payments made from the
trust described in Article Eight). Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, to which the Holders of the Securities or the Trustee
under this Indenture would be entitled, except for the provisions hereof, shall
be paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders of the Securities or by the Trustee under this Indenture if received by
them, directly to the holders of Senior Debt (pro rata to such holders on the
basis of the respective amounts of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of Senior Debt (except that Holders of the Securities may
receive Permitted Junior Securities and payments made from the trust described
in Article Eight).
(b) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder when such
payment or distribution is prohibited by Section 10.03(a), such payment or
distribution shall be held for the benefit of, and shall be paid over or
delivered to, the holders of Senior Debt (pro rata to such holders on the basis
of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash, after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Senior Debt.
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(c) To the extent any payment of Senior Debt (whether by or on behalf
of the Issuer, as proceeds of security or enforcement of any right of set-off or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(d) The consolidation of the Issuer with, or the merger of the Issuer
with or into, another corporation or the liquidation or dissolution of the
Issuer 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 and as long as permitted under the terms of the Designated Senior Debt
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 10.03 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume the Issuer's
obligations hereunder in accordance with Article Five.
SECTION 10.04. Payments May Be Paid Prior to Dissolution.
Subject to Sections 10.02(b) and 10.03(b), nothing contained in this
Article Ten or elsewhere in this Indenture shall prevent (i) the Issuer, except
under the conditions described in Sections 10.02 and 10.03, from making payments
at any time for the purpose of making payments of principal of, premium and
interest on the Securities, or from depositing with the Trustee any moneys for
such payments, or (ii) in the absence of actual knowledge by the Trustee that a
given payment would be prohibited by Section 10.02 or Section 10.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, and interest on, the Securities to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable, the Trustee
shall have actually received the written notice provided for in clause (ii) of
the first sentence of Section 10.02(a) or in Section 10.07. The Issuer shall
give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Issuer.
SECTION 10.05. Subrogation.
Subject to the payment in full in cash of all Senior Debt, the Holders
of the Securities shall be subrogated to the rights of the holders of Senior
Debt to receive payments or distributions of cash, property or securities of the
Issuer applicable to the Senior Debt until the Senior Debt shall be paid in
full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Issuer or
by or on behalf of the Holders by virtue of this Article Ten which otherwise
would have been made to the Holders shall, as between the Issuer and the Holders
of the Securities, be deemed to be a payment by the Issuer to or on account of
the Senior Debt, it being understood that the provisions of this Article Ten are
and are intended
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solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Debt, on the other
hand.
SECTION 10.06. Obligations of the Issuer Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Issuer, its
creditors other than the holders of Senior Debt, and the Holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and any interest on the
Securities 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 of the Securities and creditors of the Issuer other than the holders of
the Senior Debt, nor shall anything herein or therein prevent the Holder of any
Security or the Trustee on its behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, of the holders of Senior Debt in respect of cash, property or
securities of the Issuer received upon the exercise of any such remedy.
SECTION 10.07. Notice to Trustee.
The Issuer shall give prompt written notice to the Trustee of any
fact known to the Issuer which would prohibit the making of any payment to or by
the Trustee in respect of the Securities 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 Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trust Officer of the Trustee
shall have received notice in writing from the Issuer, or from a holder of
Senior Debt or a Representative therefor, and, prior to the receipt of any such
written notice, the Trustee shall be entitled to assume (in the absence of
actual knowledge to the contrary) that no such facts exist; provided, however,
that if a Trust Officer of the Trustee shall not have received, at least two
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose, the notice with respect to such money
provided for in this Section 10.07, then, anything herein contained to the
contrary notwithstanding, but otherwise subject to the provisions of Sections
10.02(b) and 10.03(b), the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
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
Senior Debt (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Debt (or a trustee or agent 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 Senior Debt to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such
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Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amounts of Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Ten, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent
Upon any payment or distribution of assets of the Issuer referred to
in this Article Ten, the Trustee, subject to the provisions of Article Seven,
and the Holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered to
the Trustee or the Holders of the Securities, for the purpose of ascertaining
the Persons entitled to participate in such distribution, the holders of the
Senior Debt and other Debt of the Issuer, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
The Trustee, any Agent and any agent of the Issuer, the Trustee or any
Agent shall be entitled to all the rights set forth in this Article Ten with
respect to any Senior Debt which may at any time be held by it in its individual
or any other capacity to the same extent as any other holder of Senior Debt and
nothing in this Indenture shall deprive the Trustee or any such agent of any of
its rights as such holder.
Nothing in this Article Ten shall apply to claims of, or payments to,
the Trustee in its capacity as such under or pursuant to Section 6.09 or to the
Trustee or any Agent in its capacity as such under or pursuant to Section 7.07.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its duties, covenants, responsibilities and
obligations as are specifically set forth in this Article Ten, and no implied
duties, covenants, responsibilities or obligations with respect to the holders
of Senior Debt shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders if the Trustee shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Issuer or to any other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article Ten or otherwise.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Debt, the distribution may be made and the notice may be given
to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or
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Omissions of the Issuer or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Issuer or
by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Issuer with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee, without incurring responsibility to the
Trustee or the Holders of the Securities and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders of the Securities to the holders of the Senior Debt, do any one or more
of the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt, or any instrument evidencing the same or
any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Issuer and any other Person.
SECTION 10.11. Securityholders Authorize Trustee To
Effectuate Subordination of Securities.
Each Holder of Securities by its acceptance of such Security
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate, as between the
holders of Senior Debt and the Holders of Securities, the subordination provided
in this Article Ten, and appoints the Trustee such Holder's attorney-in-fact to
act for and on behalf of each such Holder of Securities for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Issuer (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Issuer, the filing of a claim for the unpaid balance of its Securities
and accrued interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Debt 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 Securities
or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
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SECTION 10.12. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of, premium or
interest on the Securities by reason of any provision of this Article Ten will
not be construed as preventing the occurrence of an Event of Default.
ARTICLE ELEVEN
GUARANTEES OF THE SECURITIES
SECTION 11.01. Guarantees.
Subject to the provisions of this Article Eleven, each Guarantor
hereby jointly and severally unconditionally guarantees to each Holder of a
Security 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 Securities or the obligations of the Issuer or any of the other
Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the
principal of, premium, if any, and interest on the Securities will be duly and
punctually paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest, if any, on the Securities and all other Obligations on the
Securities will 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 Securities or any of such other Obligations on the
Securities, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at final Stated
Maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, for whatever reason, each Guarantor will be obligated to pay the
same immediately. An Event of Default under this Indenture or the Securities
shall constitute an event of default under the Guarantees, and shall entitle the
Holders of Securities to accelerate the obligations of the Guarantors hereunder
in the same manner and to the same extent as the Obligations of the Issuer on
the Securities.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any holder of the Securities with
respect to any provisions hereof or thereof, any release of any other Guarantor,
the recovery of any judgment against the Issuer, any action to enforce the same,
whether or not a
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Guarantee is affixed to any particular Security, or any other circumstance
(other than payment) which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each of the Guarantors hereby waives the
benefit of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and the Guarantees. If any Holder or the Trustee is required by any
court or otherwise to return to the Issuer or to any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Issuer or such Guarantor, any amount paid by the Issuer or such Guarantor to
the Trustee or such Holder, the Guarantees, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between it, on the one hand, and the Holders of Securities 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 Section
6.02 for the purposes of the Guarantees, 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 Section 6.02, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of the
Guarantees.
The Guarantees shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Issuer for
liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities
are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Securities, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Securities shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employee or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under the Guarantees by reason of his, her or its status as such stockholder,
officer, director, employee or incorporator.
The Guarantors shall have the right to seek contribution from the
Issuer and any non-paying Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Guarantees.
Each Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that in no event shall any
Guarantor's obligations under its Guarantee be subject to avoidance under any
applicable fraudulent conveyance or similar law of any relevant jurisdiction.
Therefore, in the event that the Guarantees would, but for this sentence, be
subject to
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avoidance, then the liability of the Guarantors under the Guarantees shall be
reduced to the extent necessary such that such Guarantees shall not be subject
to avoidance under the applicable fraudulent conveyance or similar law. Subject
to the preceding limitation on liability, the Guarantee of each Guarantor
constitutes a guarantee of payment in full when due and not merely a guarantee
of collectability.
SECTION 11.02. Execution and Delivery of the Guarantees.
If an officer of a Guarantor whose signature is on this Indenture or
on a supplemental indenture no longer holds that office at any time hereafter,
such Guarantor's Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantees set forth in
this Indenture on behalf of the Guarantors.
SECTION 11.03. Additional Guarantors.
If a Restricted Subsidiary is required to become a Guarantor pursuant
to Section 4.18 or Section 4.20, such Restricted Subsidiary shall (i) execute
and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Issuer's obligations under the Securities
and this Indenture on the terms set forth in this Indenture and (ii) deliver to
the Trustee an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Restricted Subsidiary and constitutes
a legal, valid, binding and enforceable obligation of such Restricted
Subsidiary. Thereafter, such Restricted Subsidiary shall be a Guarantor for all
purposes of this Indenture.
SECTION 11.04. Limitation of Guarantors' Liability.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (other than liabilities of such Guarantor under Debt which constitutes
Guarantor Subordinated Debt with respect to its Guarantee) and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 11.06, result in the obligations of such
Guarantor under such Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net Assets
of each Guarantor.
SECTION 11.05. Release from Guarantee.
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(a) Upon the release of any Guarantee in connection with a merger or
consolidation in accordance with Article Five hereof, the Trustee shall, at the
Issuer's expense, deliver an appropriate instrument evidencing such release upon
receipt of a request by the Issuer accompanied by an Officers' Certificate
certifying as to the compliance with such provisions. Any Guarantor not so
released remains liable for the full amount of principal of, premium, if any,
and interest on the Securities as provided in this Article Eleven.
(b) Upon (i) the circumstances described in Section 4.18, (ii) the
sale or disposition (whether by merger, stock purchase, asset sale or otherwise)
of a Guarantor (or substantially all of its assets) to an entity which is not a
Restricted Domestic Subsidiary of the Issuer and which is not required to become
a Guarantor pursuant to Section 4.18 (which sale or disposition is otherwise in
compliance with this Indenture) or (iii) in connection with the defeasance of
the Securities upon compliance with the conditions set forth in Article Eight
hereof, such Guarantor shall be deemed released from all of its obligations
under its Guarantee; provided, however, that any such termination shall occur
only to the extent that all obligations of such Guarantor under the Senior
Credit Facility and all of its guarantees of, and all of its pledges of assets
or other security interests which secure, such Debt of the Issuer shall also
terminate upon such release, sale or transfer.
SECTION 11.06. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled, so long as the exercise of
such right does not impair the rights of the Holders under the Guarantees, to a
contribution from all other Guarantors in a pro rata amount based on the
Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in discharging
the Issuer's obligations with respect to the Securities or any other Guarantor's
obligations with respect to the Guarantees; provided that such Funding
Guarantor's contribution right with respect to any such Guarantor shall be
subordinated in right of payment to such Guarantor's Guarantor Senior Debt on
the same basis as its Guarantee is subordinated to Guarantor Senior Debt
pursuant to Article Twelve.
SECTION 11.07. Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Issuer that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under the Guarantees and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, indemnification, and any right
to participate in any claim or remedy of any Holder of Securities against the
Issuer, 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 Issuer, 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 until payment in full of the Securities. If any
amount shall be paid to any
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Guarantor in violation of the preceding sentence and the Securities shall not
have been paid in full, such amount shall have been deemed to have been paid to
such Guarantor for the benefit of, and held in trust for the benefit of, the
Holders of the Securities, and shall, subject to the provisions of Article
Twelve, forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, whether matured or unmatured, in
accordance with the terms of this Indenture. Each Guarantor acknowledges that it
will receive direct or indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
11.07 is knowingly made in contemplation of such benefits.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEES
SECTION 12.01. Guarantee Obligations Subordinated to Guarantor Senior Debt.
Each Guarantor, for itself and its successors, covenants and agrees,
and the Trustee and each Holder of the Securities, by its acceptance thereof,
likewise covenants and agrees, that all Guarantees shall be issued subject to
the provisions of this Article Twelve; and the Trustee and each Person holding
any Guarantee, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees that the payment of all Obligations on the
Securities pursuant to the Guarantees made by or on behalf of any Guarantor
shall, to the extent and in the manner herein set forth, be subordinated and
junior in right of payment to the prior payment in full in cash of all existing
and future Obligations on the Guarantor Senior Debt of such Guarantor; that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Guarantor Senior Debt of such Guarantor, and that each holder of
Guarantor Senior Debt of such Guarantor whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have acquired
Guarantor Senior Debt of such Guarantor in reliance upon the covenants and
provisions contained in this Indenture and the Guarantees.
This Section 12.01 and the following Sections 12.02 through and
including 12.15 of this Article Twelve shall constitute a continuing offer to
all Persons who, in reliance upon such provisions, become holders of, or
continue to hold Guarantor Senior Debt of any Guarantor and, to the extent set
forth in Section 12.02, holders of Designated Senior Debt; and such provisions
are made for the benefit of the holders of Guarantor Senior Debt of each
Guarantor and, to the extent set forth in Section 12.02, holders of Designated
Senior Debt; and such holders (to such extent) are made obligees hereunder and
they or each of them may enforce such provisions.
SECTION 12.02. No Payment on Guarantees in Certain Circumstances.
(a) No payment of any kind or character shall be made by or on
behalf of any Guarantor or any other Person on behalf of such Guarantor with
respect to any Obligations of such Guarantor on the Securities or under the
Guarantee of the Securities of such Guarantor or to acquire
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any of the Securities for cash or property or otherwise if (i) any default
occurs and is continuing in the payment when due, whether at maturity, upon any
redemption, by declaration or otherwise, of any principal of, premium, if any,
interest on, unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Designated Senior Debt of any
Guarantor, or (ii) any other default occurs and is continuing with respect to
Designated Senior Debt of any Guarantor that permits holders of such Designated
Senior Debt then outstanding to accelerate the maturity thereof and, in the case
of this clause (ii), the Trustee receives a notice of such default (a "Guarantor
Default Notice") from the Representative for the respective issue of Designated
Senior Debt. Payments may and shall be resumed with respect to any Obligations
of such Guarantor on the Securities or under the Guarantee of such Guarantor in
respect of the Securities or with respect to the acquisition of any of the
Securities for cash or property or otherwise (x) in the case of a payment
default described in clause (i) above, upon the date on which such default is
cured or waived and (y) in the case of a default described in clause (ii) above,
the earliest of (a) the date on which all such defaults have been cured or
waived, (b) 179 days after the date on which the applicable Guarantor Default
Notice is received, (c) the date such Designated Senior Debt shall have been
paid in full in cash or (d) the date such Guarantor Blockage Period shall have
been terminated by written notice to the Trustee from the Representative of the
Designated Senior Debt initiating such Guarantor Blockage Period, after which,
in the case of clauses (a), (b), (c) and (d), such Guarantor shall resume making
any and all required payments in respect of the Securities, including any
payments not made to the Holders of the Securities during the Guarantor Blockage
Period due to the foregoing prohibitions, unless the provisions described in
clause (i) above or the provisions of Section 12.03 are then applicable. No new
Guarantor Blockage Period may be commenced unless and until 360 days have
elapsed since the effectiveness of the immediately prior Guarantor Blockage
Period. No default which existed or was continuing on the date of delivery of
any Guarantor Default Notice with respect to the Designated Senior Debt shall
be, or be made, the basis of a subsequent Guarantor Default Notice by the
Representative of such Designated Senior Debt, unless such default shall have
been cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Guarantor Blockage Period, that, in either case, would give rise to such a
default pursuant to any provision under which such default previously existed or
was continuing shall constitute a new default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder of a Guarantee when such payment
is prohibited by Section 12.02(a), such payment shall be held for the benefit
of, and shall be paid over or delivered to, the holders of such Guarantor Senior
Debt (pro rata to such holders on the basis of the respective amount of such
Guarantor Senior Debt held by such holders) or their respective Representatives,
as their respective interests may appear. The Trustee shall be entitled to rely
on information regarding amounts then due and owing on such Guarantor Senior
Debt, if any, received from the holders of such Guarantor Senior Debt (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from the Issuer or the Guarantors and only amounts
included in the information provided to the Trustee shall be paid to the holders
of such Guarantor Senior Debt.
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(c) Nothing contained in this Article Twelve shall limit the right of
the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Guarantor Senior Debt thereafter due or
declared to be due shall first be paid in full in cash before the Holders are
entitled to receive any payment with respect to Obligations on the Guarantees.
SECTION 12.03. Payment Over of Proceeds Upon Dissolution, etc.
(a) Upon any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to creditors
upon any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of any Guarantor
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to any Guarantor or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Guarantor Senior Debt
of such Guarantor (including interest accruing after the commencement of any
such proceeding at the rate specified in the applicable Guarantor Senior Debt
whether or not such interest is an allowed claim in any such proceeding) shall
first be paid in full in cash before any payment or distribution of any kind or
character is made on account of any Obligations of such Guarantor on its
Guarantee, or for the acquisition of any of the Securities for cash or property
or otherwise (except that Holders of the Securities may receive Permitted Junior
Securities and payments made from the trust described in Article Eight). Upon
any such dissolution, winding-up, liquidation, reorganization, receivership or
similar proceeding, any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to which the
Holders of the Guarantees or the Trustee under this Indenture would be entitled,
except for the provisions hereof, shall be paid by such Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders of the Guarantees or by
the Trustee under this Indenture if received by them, directly to the holders of
Guarantor Senior Debt of such Guarantor (pro rata to such holders on the basis
of the respective amounts of such Guarantor Senior Debt held by such holders) or
their respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Guarantor Senior Debt may have been
issued, as their respective interests may appear, for application to the payment
of such Guarantor Senior Debt remaining unpaid until all such Guarantor Senior
Debt has been paid in full in cash after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of such
Guarantor Senior Debt (except that Holders of the Securities may receive
Permitted Junior Securities and payments made from the trust described in
Article Eight).
(b) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of any Guarantor of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or any Holder
when such payment or distribution is prohibited by Section 12.03(a), such
payment or distribution shall be held for the benefit of, and shall be paid over
or delivered to, the holders of Guarantor Senior Debt of such Guarantor (pro
rata to such holders on the basis of the respective amount of such Guarantor
Senior Debt held by such holders) or their respective Representatives, or to the
trustee or trustees under any indenture pursuant to which any
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of such Guarantor Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of such Guarantor Senior
Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full
in cash, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Guarantor Senior Debt.
(c) To the extent any payment of Guarantor Senior Debt (whether by or
on behalf of any Guarantor, as proceeds of security or enforcement of any right
of set-off or otherwise) is declared to be fraudulent or preferential, set aside
or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Guarantor Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
(d) The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
any Guarantor following the conveyance or transfer of all or substantially all
of its assets, to another corporation which complies with the terms and
conditions provided in Article Five and which does not violate any other
Obligation of such Guarantor under this Indenture or Guarantee of such Guarantor
and as long as permitted under the terms of the Designated Senior Debt of such
Guarantor shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 12.03 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, assume
such Guarantor's obligations hereunder in accordance with Article Five.
SECTION 12.04. Payments May Be Paid Prior to Dissolution.
Subject to Sections 12.02(b) and 12.03(b), nothing contained in
this Article Twelve or elsewhere in this Indenture shall prevent (i) a
Guarantor, except under the conditions described in Sections 12.02 and 12.03,
from making payments at any time for the purpose of making payments of principal
of, premium and interest on the Securities, or from depositing with the Trustee
any moneys for such payments, or (ii) in the absence of actual knowledge by the
Trustee that a given payment would be prohibited by Sections 12.02 and 12.03,
the application by the Trustee of any moneys deposited with it for the purpose
of making such payments of principal of, and interest on, the Securities to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable, the Trustee
shall have actually received the written notice provided for in the second
sentence of Section 12.02(a) or in Section 12.09. A Guarantor shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of such Guarantor.
SECTION 12.05. Subrogation.
Subject to the payment in full in cash of all Guarantor Senior Debt of
a Guarantor, the Holders of the Guarantees shall be subrogated to the rights of
the holders of such Guarantor
93
Senior Debt to receive payments or distributions of cash, property or securities
of such Guarantor applicable to the Guarantor Senior Debt of a Guarantor until
the Securities shall be paid in full; and, for the purposes of such subrogation,
no such payments or distributions to the holders of such Guarantor Senior Debt
by or on behalf of such Guarantor or by or on behalf of the Holders of the
Guarantees by virtue of this Article Twelve which otherwise would have been made
to such Holders of the Guarantees shall, as between such Guarantor and the
Holders of the Guarantees, be deemed to be a payment by such Guarantor to or on
account of the Guarantor Senior Debt of a Guarantor.
SECTION 12.06. Guarantee Provisions Solely To Define Relative Rights.
The subordination provisions of this Article Twelve are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities on the one hand and the holders of Guarantor Senior Debt of
each Guarantor and, to the extent set forth in Section 12.02, holders of
Designated Senior Debt of each Guarantor, on the other hand. Nothing contained
in this Article Twelve or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among any Guarantor, its creditors other
than holders of its Guarantor Senior Debt and the Holders of the Securities, the
obligation of such Guarantor, which is absolute and unconditional, to make
payments to the Holders in respect of its obligations under its Guarantee as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against such Guarantor of the Holders of the
Securities and creditors of such Guarantor other than the holders of the
Guarantor Senior Debt of such Guarantor; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon a Default or an Event of Default under this Indenture,
subject to the rights, if any, under the subordination provisions of this
Article Twelve of the holders of Guarantor Senior Debt of such Guarantor
hereunder and, to the extent set forth in Section 12.02, holders of Designated
Senior Debt of such Guarantor (1) in any case, proceeding, dissolution,
liquidation or other winding-up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of such Guarantor referred to in
Section 12.03, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder, or (2) under the conditions specified in Section 12.02, to prevent
any payment prohibited by such Section or enforce their rights pursuant to
Section 12.02(c).
The failure by any Guarantor to make a payment in respect of its
obligations under its Guarantee 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 hereunder.
SECTION 12.07. Trustee To Effectuate Subordination of Obligations Under the
Guarantees.
Each Holder of a Security by its acceptance of such Security
authorizes and expressly directs the Trustee to take on behalf of such Holder of
Securities such action as may be necessary or appropriate to effectuate as
between the holders of Guarantor Senior Debt and Holders of Securities, the
subordination provided in this Article Twelve, and appoints the Trustee its
attorney-in-fact to act for it and on its behalf for such purposes, including,
in the event of any
94
dissolution, winding-up, liquidation or reorganization of any Guarantor (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or, otherwise) tending
towards liquidation of the business and assets of such Guarantor, the filing of
a claim for the unpaid balance of its Guarantee and accrued interest in the form
required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Guarantor Senior Debt
or their Representative are or is hereby authorized to have the right to file
and are or is hereby authorized to file an appropriate claim for and on behalf
of the Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Guarantor Senior Debt 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 Securities or the rights of any Holder thereof, or to authorize
the Trustee or the holders of Guarantor Senior Debt or their Representative to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 12.08. No Waiver of Guarantee Subordination Provisions.
No right of any present or future holder of any Guarantor Senior Debt
of any Guarantor to enforce subordination as provided herein shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part of
the Issuer or such Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Issuer or such Guarantor with
the terms of this Indenture, regardless of any knowledge thereof any such holder
may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Debt of any Guarantor may, at any time and from
time to time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Guarantees to the holders of such
Guarantor Senior Debt, do any one or more of the following: (1) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Guarantor Senior Debt or any Senior Debt as to which such Guarantor
Senior Debt relates, or otherwise amend or supplement in any manner such
Guarantor Senior Debt or any Senior Debt to which such Guarantor Senior Debt
relates; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Guarantor Senior Debt or any
Senior Debt as to which such Guarantor Senior Debt relates; (3) release any
person liable in any manner for the collection or payment of such Guarantor
Senior Debt or any Senior Debt as to which such Guarantor Senior Debt relates;
and (4) exercise or refrain from exercising any rights against such Guarantor
and any other Person.
SECTION 12.09. Guarantors To Give Notice to Trustee.
95
The Issuer and each Guarantor shall give prompt written notice to the
Trustee of any fact known to the Issuer or such Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Twelve. Notwithstanding the
subordination provisions of this Article Twelve or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Guarantor Senior Debt or of
any other facts which would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall have received notice in writing from
the Issuer, such Guarantor or from a holder of Guarantor Senior Debt or a
Representative therefor, and, prior to the receipt of any such written notice,
the Trustee shall be entitled to assume (in the absence of actual knowledge to
the contrary) that no such facts exist; provided, however, that if a Trust
Officer of the Trustee shall not have received, at least two Business Days prior
to the date upon which by the terms hereof any such money may become payable for
any purpose, the notice with respect to such money provided for in this Section
12.09, then, anything herein contained to the contrary notwithstanding, but
otherwise subject to the provisions of Sections 12.02(b) and 12.03(b), the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date.
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
Guarantor Senior Debt (or a trustee or agent on behalf of such holder) to
establish that such notice has been given by a holder of Guarantor Senior Debt
(or a trustee or agent 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 Senior Debt of any Guarantor 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 Debt of such
Guarantor 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 12.10. Reliance on Judicial Order or Certificate of Liquidating Agent
Regarding Dissolution, etc., of Guarantors.
Upon any payment or distribution of assets of a Guarantor referred to
in this Article Twelve, the Trustee, subject to the provisions of Article Seven,
and the Holders shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such bankruptcy, liquidation or
reorganization, dissolution, winding-up proceedings are pending, or upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, delivered to the Trustee or
to the Holders of the Guarantees, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of
Guarantor Senior Debt of such Guarantor and other Debt of such Guarantor, the
amount
96
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.11. No Suspension of Remedies.
Nothing contained in this Article Twelve shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities 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 Debt
of the Guarantors.
SECTION 12.12. Trustee's Relation to Guarantor Senior Debt.
The Trustee, any Agent and any agent of the Trustee or any Agent shall
be entitled to all the rights set forth in this Article Twelve with respect to
any Guarantor Senior Debt which may at any time be held by it in its individual
or any other capacity to the same extent as any other holder of such Guarantor
Senior Debt and nothing in this Indenture shall deprive the Trustee or any Agent
or any of their agents of any of its rights as such holder.
With respect to the holders of Guarantor Senior Debt, the Trustee and
any Agent undertake to perform or to observe only such of their duties,
covenants, responsibilities 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 Debt shall be read into this Indenture against the
Trustee or any Agent. Neither the Trustee nor any Agent shall be deemed to owe
any fiduciary or other duty to the holders of Guarantor Senior Debt and shall
not be liable to any such holders if the Trustee or any Agent shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Issuer or to any other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article Twelve or otherwise.
Whenever a distribution is to be made or a notice given to holders or
owners of Guarantor Senior Debt, the distribution may be made and the notice may
be given to their Representative, if any.
SECTION 12.13. No Subordination of Certain Claims.
Nothing within Article Twelve shall apply to claims of or payments to
the Trustee in its capacity as such under or pursuant to Section 6.09 or to the
Trustee or any Agent in its capacity as such under or pursuant to Section 7.07.
97
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.
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 telecopier or first class mail, postage prepaid, addressed as follows:
if to the Issuer:
Globe Manufacturing Corp.
456 Bedford Street
Fall River, Massachusetts 02720
Attention: Lawrence R. Walsh
Facsimile: (508) 679-9458
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Stephen L. Ritchie
Facsimile: (312) 861-2200
if to the Trustee:
Norwest Bank Minnesota, National Association
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Services
Facsimile: (612) 667-9825
The Issuer, the Guarantors and the Trustee by written notice to each
other such Person may designate additional or different addresses for notices to
such Person. Any notice or communication to the Issuer, the Guarantors or the
Trustee shall be deemed to have been given or
98
made as of the date so delivered if personally delivered; when receipt is
acknowledged, if faxed; and five Business 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 to him
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The Issuer,
the Guarantors, the Trustee, the Registrar and any other Person shall have the
protection of TIA (S)(S) 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, other than with respect to the authentication
of the Securities for original issuance on the Issue Date, the Issuer shall
furnish to the Trustee upon the Trustee's request:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent to be performed by the Issuer, if any, provided
for in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Issuer, if
any, provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
99
(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; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 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 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 AND THE SECURITIES 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 OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Issuer or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. No Recourse Against Others.
100
A past, present or future director, officer, employee, incorporator,
stockholder or limited or general partner, as such, of the Issuer or any of its
Subsidiaries shall not have any liability for any obligations of the Issuer or
any of its Subsidiaries under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creations.
Each Holder by accepting a Security waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the
Securities.
SECTION 13.11. Successors.
All agreements of the Issuer in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. 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
Securities 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.
[signature page follows]
101
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
ISSUER:
GLOBE MANUFACTURING CORP., an Alabama corporation
By /s/ Thomas A. Rodgers, III
----------------------------------------------
Name: Thomas A. Rodgers, III
Title: President
TRUSTEE:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By /s/ Curtis D. Schwegman
----------------------------------------------
Name: Curtis D. Schwegman
Title: Assistant Vice President
102
EXHIBIT A-1
[Form of Security]
THE NOTE EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER
OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH NOTE MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT PROVIDED THAT IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (d)
SUCH TRANSFER IS EFFECTED BY THE DELIVERY TO THE TRANSFEREE OF DEFINITIVE
SECURITIES REGISTERED IN ITS NAME (OR ITS NOMINEE'S NAME) IN THE BOOKS
MAINTAINED BY THE REGISTRAR, AND IS SUBJECT TO THE RECEIPT BY THE REGISTRAR (AND
THE ISSUER, IF ITS SO REQUESTS) OF A CERTIFICATION OF THE TRANSFEROR AND AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (ii) TO THE ISSUER OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITIES EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
Globe Manufacturing Corp.
10% Senior Subordinated Note Due 2008
CUSIP No. _______
No. $
Globe Manufacturing Corp., an Alabama corporation (the "Issuer"), for
value received, promises to pay to __________ or registered assigns, the
principal sum of __________ Dollars, on August 1, 2008.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Globe Manufacturing Corp.,
an Alabama corporation
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
A-1-2
Trustee's Certificate of Authentication
This is one of the 10% Senior Subordinated Notes due 2008 referred to
in the within-mentioned Indenture.
Date of Authentication:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By_________________________________
Authorized Signatory
A-1-3
(REVERSE OF SECURITY)
10% Senior Subordinated Note Due 2008
1. Interest. Globe Manufacturing Corp., an Alabama corporation (the
"Issuer"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. Interest on the Securities will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from July 31, 1998. The Issuer will pay interest semi-annually in arrears
on each Interest Payment Date, commencing February 1, 1999. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and on overdue
installments of interest from time to time in accordance with Section 2.12 of
the Indenture at the rate borne by the Securities to the extent lawful.
2. Method of Payment. The Issuer shall pay interest on the Securities
(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 Securities are canceled on registration of transfer or
registration of exchange after such record date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Issuer shall pay
principal, 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 Issuer may pay principal, premium, if any,
and interest by its check payable in such U.S. Legal Tender unless a Holder of
Securities has given wire transfer instructions in which case the Issuer will be
required to make payment of principal, premium, if any, and interest by wire
transfer of immediately available funds to the accounts specified by such
Holder. The Issuer may deliver any such payments 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 Issuer may change any Paying Agent, Registrar or co-
Registrar without notice to the Holders. The Issuer or any of its Subsidiaries
may, subject to certain exceptions, act as Registrar or co-Registrar.
4. Indenture and Guarantees. The Issuer issued the Securities under an
Indenture dated as of July 31, 1998 (the "Indenture"), among the Issuer, each of
the Guarantors party thereto from time to time and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee"). This Security is one of a duly
authorized issue of Securities of the Issuer designated as its 10% Senior
Subordinated Notes due 2008 issued on the Issue Date (the "Initial Securities"),
limited (except as otherwise provided in the Indenture) in aggregate principal
amount to $300.0 million, which may
A-1-4
be issued under the Indenture. The Securities include the Initial Securities,
the Private Exchange Securities and the Unrestricted Securities, as defined
below, issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement, or with respect to Securities 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 Securities, the Private Exchange Securities and the Unrestricted
Securities are treated as a single class of securities under the Indenture. The
terms of the Securities 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.C.
(S)(S) 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and the
TIA for a statement of them. The Securities are general unsecured obligations of
the Issuer. Payment on each Security is guaranteed on an unsecured senior
subordinated basis, jointly and severally, by the Guarantors pursuant to Article
Eleven of the Indenture. Each Holder, by accepting a Security, agrees to be
bound by all terms and provisions of the Indenture, as the same may be amended
from time to time in accordance with its terms.
5. Subordination. The Securities 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 of all Senior Debt, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. To the extent
and in the manner provided in the Indenture, Senior Debt must be paid before any
payment may be made to any Holder of this Security. 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.
6. Optional Redemption. (i) The Securities will be redeemable at the
option of the Issuer, in whole or in part, at any time and from time to time on
or after August 1, 2003, at the Redemption Prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest thereon to
the applicable Redemption Date, if redeemed during the 12-month period beginning
on August 1, of the years indicated below:
Redemption
Year Price
---- ----------
2003........................................ 105.000%
2004........................................ 103.333%
2005........................................ 101.667%
2006 and thereafter......................... 100.000%
(ii) At any time prior to August 1, 2001, the Issuer may on any one or
more occasions redeem from the net proceeds of one or more Equity Offerings up
to an aggregate of 35.0% in
A-1-5
aggregate principal amount of the Securities at a redemption price of 110% of
the principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date; provided that at least $97.5 million in aggregate principal
amount of Securities remain outstanding immediately after the occurrence of such
redemption.
7. Notice of Redemption. Notice of redemption shall be mailed by first-
class mail, postage prepaid, mailed to such Holder's registered address, at
least 30 but not more than 60 days before the Redemption Date. Securities in
denominations larger than $1,000 may be redeemed in part.
8. Change of Control Offer. In the event of a Change of Control, upon
the satisfaction of the conditions set forth in the Indenture, the Issuer shall
be required to offer to repurchase all or a portion of the then outstanding
Securities pursuant to a Change of Control Offer at a purchase price equal to
101% of the principal amount thereof, plus accrued interest to the date of
repurchase. Holders of Securities which are the subject of such an offer to
repurchase shall receive an offer to repurchase and may elect to have such
Securities repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain circumstances the
Issuer is required to apply the net cash proceeds from Asset Sales to offer to
repurchase Securities at a price equal to 100% of the aggregate principal amount
thereof, plus accrued interest to the date of repurchase.
10. Denominations; Transfer; Exchange. The Securities are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange Securities 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 permitted by the Indenture. The Registrar or co-Registrar shall not
be required to register the transfer of or exchange of any Security (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing, (ii) selected for redemption in whole or in part pursuant
to Article Three of the Indenture, except the unredeemed portion of any Security
being redeemed in part and (iii) during a Change of Control Offer or an Asset
Sale Offer if such Security is tendered pursuant to such Change of Control Offer
or Asset Sale Offer and not withdrawn.
11. Persons Deemed Owners. The registered Holder of a Security shall be
treated as the owner of it for all purposes.
A-1-6
12. 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 Issuer. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Issuer 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 Securities to redemption
or maturity and complies with the other provisions of the Indenture relating
thereto, the Issuer will be discharged from certain provisions of the Indenture
and the Securities (including certain covenants, but excluding its obligation to
pay the principal of and interest on the Securities).
14. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture or the Securities to, among other things, cure
any ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities, provide for the assumption
of the Issuer's obligations to Holders of the Securities in the event of any
Disposition involving the Issuer in which the Issuer is not a Surviving Person,
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under TIA, provide for the issuance of Exchange
Securities or make any other change that does not adversely affect in any
material respect the legal rights under the Indenture of any Holder of a
Security.
15. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, incur additional Debt, make payments in respect of its Equity Interests
or certain Debt, enter into transactions with Related Persons, create dividend
or other payment restrictions affecting Restricted Subsidiaries and merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Issuer must annually report to the Trustee on
compliance with such limitations.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Securities and the
Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may
A-1-7
declare all the Securities to be due and payable in the manner, at the time and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities 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 Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest) if it determines in good
faith that withholding notice is in their interest.
18. Defeasance. The Indenture contains provisions (which provisions apply
to this Security) which provide that (a) the Issuer will be discharged from any
and all obligations in respect of the Securities and the Guarantors will be
released from their Guarantees and (b) the payment of the Securities may not be
accelerated upon certain Events of Default, in each case upon compliance by the
Issuer with certain conditions set forth therein.
19. Trustee Dealings with Issuer. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Issuer, Subsidiaries of the Issuer or their
respective Affiliates as if it were not the Trustee.
20. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or limited or general partner of
the Issuer or any of its Subsidiaries shall have any liability for any
obligations of the Issuer or any of its Subsidiaries under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Holder of a Security by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
21. Authentication. This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
22. Governing Law. The laws of the State of New York shall govern this
Security and the Indenture, without regard to principles of conflict of law
other than Section 5-1401 of the New York General Obligations Law.
23. Abbreviations and Defined Terms. Customary abbreviations may be used
in the name of a Holder of a Security 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).
A-1-8
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the
committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
25. Registration Rights.
Pursuant to the Registration Rights Agreement among the Issuer and the
Initial Purchasers on behalf of the Holders of the Securities, the Issuer will
be obligated to consummate an exchange offer pursuant to which the Holder of
this Security shall have the right to exchange this Security for the Issuer's
[ ]% Senior Subordinated Notes due 2008 (the "Unrestricted Securities") which
will be registered under the Securities Act, in like principal amount and having
terms identical in all material respects as the Initial Securities. The Holders
of the Initial Securities 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. Additional interest which may be payable
pursuant to the Registration Rights Agreement shall be payable in the same
manner as set forth herein with respect to the stated interest. The provisions
of the Registration Rights Agreement relating to such additional interest are
incorporated herein by reference and made a part hereof as if set forth herein
in full.
26. Indenture. Each Holder, by accepting a Security, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time. Capitalized terms used herein and not defined herein have
the meanings ascribed thereto in the Indenture.
The Issuer will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture, which has the text of this
Security in larger type. Requests may be made to:
Globe Manufacturing Corp.
456 Bedford Street
Fall River, Massachusetts 02720
Attention: President
Facsimile: (508) 679-9458
A-1-9
ASSIGNMENT FORM
I or we assign to and transfer this Security to
_________________________________________________________________________
_________________________________________________________________________
(please print or type name and address)
_________________________________________________________________________
(insert Social Security number or other identifying number of assignee)
and irrevocably appoint _____________ agent to transfer this Security on the
books of the Issuer. The agent may substitute another to act for him.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Act") covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii) July
31, 2000 (or such later date which is two years following the last date on which
the Issuer or an affiliate of the Issuer held this Security or any predecessor
Security), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that:
[Check One]
[_] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
[_] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
A-1-10
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
Dated: ______________ Signed: ________________________________
(Signed exactly as name appears on the other
side of this Security)
Signature Guarantee: __________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as 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 the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: ________________ _________________________________________
NOTICE: To be executed by an executive officer
A-1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Issuer pursuant to
Section 4.15 or 4.16 of the Indenture, check the appropriate Box:
Section 4.15 [_]
Section 4.16 [_]
If you wish to have a portion of this Security purchased by the Issuer
pursuant to Section 4.15 or 4.16 of the Indenture, state the amount you wish to
have purchased:
US$_________
Date: __________________ Your Signature: _________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee: ____________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
A-1-12
EXHIBIT A-2
Globe Manufacturing Corp.
10% Senior Subordinated Note Due 2008
CUSIP No. _______
No. $
Globe Manufacturing Corp., an Alabama corporation (the "Issuer"), for
value received, promises to pay to __________ or registered assigns, the
principal sum of __________ Dollars, on August 1, 2008.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Issuer has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Globe Manufacturing Corp.,
an Alabama corporation
By____________________________________
Name:
Title:
Trustee's Certificate of Authentication
This is one of the 10% Senior Subordinated Notes due 2008 referred to
in the within-mentioned Indenture.
Date of Authentication:
Norwest Bank Minnesota, National Association, as
Trustee
By____________________________
Authorized Signatory
A-2-2
(REVERSE OF SECURITY)
10% Senior Subordinated Note Due 2008
1. Interest. Globe Manufacturing Corp., an Alabama corporation (the
"Issuer"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. Interest on the Securities will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from July 31, 1998. The Issuer will pay interest semi-annually in arrears
on each Interest Payment Date, commencing February 1, 1999. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and on overdue
installments of interest from time to time in accordance with Section 2.12 of
the Indenture at the rate borne by the Securities to the extent lawful.
2. Method of Payment. The Issuer shall pay interest on the Securities
(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 Securities are canceled on registration of transfer or
registration of exchange after such record date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Issuer shall
pay principal, 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 Issuer may pay principal, premium, if any,
and interest by its check payable in such U.S. Legal Tender unless a Holder of
Securities has given wire transfer instructions in which case the Issuer will be
required to make payment of principal, premium, if any, and interest by wire
transfer of immediately available funds to the accounts specified by such
Holder. The Issuer may deliver any such payments 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 Issuer may change any Paying Agent, Registrar or co-
Registrar without notice to the Holders. The Issuer or any of its Subsidiaries
may, subject to certain exceptions, act as Registrar or co-Registrar.
4. Indenture and Guarantees. The Issuer issued the Securities under an
Indenture dated as of July 31, 1998 (the "Indenture"), among the Issuer, each of
the Guarantors party thereto from time to time and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee"). This Security is one of a
duly authorized issue of Securities of the Issuer designated as its 10% Senior
Subordinated Notes due 2008 (the "Securities"), limited (except as otherwise
provided in the
A-2-3
Indenture) in aggregate principal amount to $300.0 million, which may be issued
under the Indenture. The Securities include the Securities issued on the Issue
Date (the "Initial Securities"), the Private Exchange Securities and the
Unrestricted Securities, as defined below, issued in exchange for the Initial
Securities pursuant to the Registration Rights Agreement, or with respect to
Securities 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 Securities, the Private Exchange
Securities and the Unrestricted Securities are treated as a single class of
securities under the Indenture. The terms of the Securities 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.C. (S)(S) 77aaa-77bbbb) (the "TIA"), as in effect
on the date of the Indenture. Notwithstanding anything to the contrary herein,
the Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and the TIA for a statement of them. The Securities
are general unsecured obligations of the Issuer. Payment on each Security is
guaranteed on an unsecured senior subordinated basis, jointly and severally, by
the Guarantors pursuant to Article Eleven of the Indenture. Each Holder, by
accepting a Security, agrees to be bound by all terms and provisions of the
Indenture, as the same may be amended from time to time in accordance with its
terms.
5. Subordination. The Securities 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 of all Senior Debt, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. To the extent
and in the manner provided in the Indenture, Senior Debt must be paid before any
payment may be made to any Holder of this Security. 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.
6. Optional Redemption. (i)The Securities will be redeemable at the
option of the Issuer, in whole or in part, at any time and from time to time on
or after August 1, 2003, at the Redemption Prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest thereon to
the applicable Redemption Date, if redeemed during the 12-month period beginning
on August 1, of the years indicated below:
Redemption
Year Price
---- ----------
2003......................................... 105.000%
2004......................................... 103.333%
2005......................................... 101.667%
2006 and thereafter.......................... 100.000%
A-2-4
(ii) At any time prior to August 1, 2001, the Issuer may on any one
or more occasions redeem from the net proceeds of one or more Equity Offerings
up to an aggregate of 35.0% in aggregate principal amount of the Securities at a
redemption price of 110% of the principal amount thereof, plus accrued and
unpaid interest thereon to the redemption date; provided that at least $97.5
million in aggregate principal amount of Securities remain outstanding
immediately after the occurrence of such redemption.
7. Notice of Redemption. Notice of redemption shall be mailed by first-
class mail, postage prepaid, mailed to such Holder's registered address, at
least 30 but not more than 60 days before the Redemption Date. Securities in
denominations larger than $1,000 may be redeemed in part.
8. Change of Control Offer. In the event of a Change of Control, upon
the satisfaction of the conditions set forth in the Indenture, the Issuer shall
be required to offer to repurchase all or a portion of the then outstanding
Securities pursuant to a Change of Control Offer at a purchase price equal to
101% of the principal amount thereof, plus accrued interest to the date of
repurchase. Holders of Securities which are the subject of such an offer to
repurchase shall receive an offer to repurchase and may elect to have such
Securities repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain circumstances the
Issuer is required to apply the net cash proceeds from Asset Sales to offer to
repurchase Securities at a price equal to 100% of the aggregate principal amount
thereof, plus accrued interest to the date of repurchase.
10. Denominations; Transfer; Exchange. The Securities are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange Securities 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 permitted by the Indenture. The Registrar or co-Registrar shall not
be required to register the transfer of or exchange of any Security (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing, (ii) selected for redemption in whole or in part pursuant
to Article Three of the Indenture, except the unredeemed portion of any Security
being redeemed in part and (iii) during a Change of Control Offer or an Asset
Sale Offer if such Security is tendered pursuant to such Change of Control Offer
or Asset Sale Offer and not withdrawn.
11. Persons Deemed Owners. The registered Holder of a Security shall be
treated as the owner of it for all purposes.
A-2-5
12. 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 Issuer. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Issuer 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 Securities to redemption
or maturity and complies with the other provisions of the Indenture relating
thereto, the Issuer will be discharged from certain provisions of the Indenture
and the Securities (including certain covenants, but excluding its obligation to
pay the principal of and interest on the Securities).
14. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture or the Securities to, among other things, cure
any ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities, provide for the assumption
of the Issuer's obligations to Holders of the Securities in the event of any
Disposition involving the Issuer in which the Issuer is not a Surviving Person,
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under TIA, provide for the issuance of Exchange
Securities or make any other change that does not adversely affect in any
material respect the legal rights under the Indenture of any Holder of a
Security.
15. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, incur additional Debt, make payments in respect of its Equity Interests
or certain Debt, enter into transactions with Related Persons, create dividend
or other payment restrictions affecting Restricted Subsidiaries and merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Issuer must annually report to the Trustee
on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Securities and the
Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may
A-2-6
declare all the Securities to be due and payable in the manner, at the time and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities 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 Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest) if it determines in good
faith that withholding notice is in their interest.
18. Defeasance. The Indenture contains provisions (which provisions apply
to this Security) which provide that (a) the Issuer will be discharged from any
and all obligations in respect of the Securities and the Guarantors will be
released from their Guarantees and (b) the payment of the Securities may not be
accelerated upon certain Events of Default, in each case upon compliance by the
Issuer with certain conditions set forth therein.
19. Trustee Dealings with Issuer. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Issuer, Subsidiaries of the Issuer or their
respective Affiliates as if it were not the Trustee.
20. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or limited or general partner of
the Issuer or any of its Subsidiaries shall have any liability for any
obligations of the Issuer or any of its Subsidiaries under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Holder of a Security by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
21. Authentication. This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
22. Governing Law. The laws of the State of New York shall govern this
Security and the Indenture, without regard to principles of conflict of law
other than Section 5-1401 of the New York General Obligations Law.
23. Abbreviations and Defined Terms. Customary abbreviations may be used
in the name of a Holder of a Security 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).
A-2-7
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the
committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
25. Indenture. Each Holder, by accepting a Security, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time. Capitalized terms used herein and not defined herein have
the meanings ascribed thereto in the Indenture.
The Issuer will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture, which has the text of this
Security in larger type. Requests may be made to:
Globe Manufacturing Corp.
456 Bedford Street
Fall River, Massachusetts 02720
Attention: President
Facsimile: (508) 679-9458
A-2-8
[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 Security and all rights thereunder, hereby irrevocably constituting
and appointing
_________________________________________________________________
attorney to transfer the Security on the books of the Issuer with full power of
substitution in the premises.
Date: ________________ Your Signature: ________________________
NOTICE: The signature on this assignment
must correspond with the name as it
appears upon the face of the within
Security in every particular without
alteration or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee: _____________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
A-2-9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Issuer pursuant to
Section 4.15 or 4.16 of the Indenture, check the appropriate Box:
Section 4.15 [ ]
Section 4.16 [ ]
If you wish to have a portion of this Security purchased by the Issuer
pursuant to Section 4.15 or 4.16 of the Indenture, state the amount you wish to
have purchased:
US$_________
Date: ________________ Your Signature: ________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee: ________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
A-2-10
EXHIBIT B
Form of Legend For Global Securities
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY OR A
SUCCESSOR. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IT IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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 GLOBAL SECURITIES SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO THE DEPOSITARY, ITS SUCCESSORS OR THEIR RESPECTIVE
NOMINEES. INTERESTS OF BENEFICIAL OWNERS IN THE GLOBAL SECURITIES MAY BE
TRANSFERRED OR EXCHANGED FOR CERTIFICATED SECURITIES IN ACCORDANCE WITH THE
RULES AND PROCEDURES OF THE DEPOSITARY AND THE PROVISIONS OF SECTION 2.16
OF THE INDENTURE. IN ADDITION, CERTIFICATED SECURITIES SHALL BE
TRANSFERRED TO ALL BENEFICIAL OWNERS IN EXCHANGE FOR THEIR
BENEFICIAL INTERESTS IN GLOBAL SECURITIES IF (i) THE ISSUER NOTIFIES THE
REGISTRAR THAT THE DEPOSITARY IS UNWILLING OR UNABLE TO CONTINUE AS
DEPOSITARY FOR ANY GLOBAL SECURITY AND A SUCCESSOR DEPOSITARY IS NOT
APPOINTED BY THE ISSUER WITHIN 90 DAYS OF SUCH NOTICE OR (ii) THE ISSUER,
AT ITS OPTION, NOTIFIES THE REGISTRAR IN WRITING THAT IT ELECTS TO CAUSE
THE ISSUANCE OF SECURITIES IN DEFINITIVE FORM UNDER THE INDENTURE.
B-2
EXHIBIT C
Transferee Certificate for Institutional
Accredited Investors Who Are Not QIBs
__________, ____
Norwest Bank Minnesota, National Association, as Registrar
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Services
Facsimile: (612) 667-9825
RE: GLOBE MANUFACTURING CORP.
10% SENIOR SUBORDINATED NOTES DUE 2008
--------------------------------------
Dear Sir or Madam:
In connection with our proposed purchase of 10% Senior Subordinated Notes
due 2008 and related guarantees (the "Securities") of Globe Manufacturing Corp.,
an Alabama corporation (the "Issuer"), we confirm that:
1. We are an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the
"Securities Act"), or an entity in which all of the equity owners are accredited
investors within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act (an "Institutional Accredited Investor").
2. Any purchase of Securities by us will be for our own account or
for the account of one or more other Institutional Accredited Investors over
which we have sole investment discretion and authority to deliver this
certificate and to purchase the Securities.
3. In the event that we purchase any Securities, we will acquire
Securities having a minimum purchase price of as least $100,000 for our own
account and for each separate account for which we are acting.
4. We have such knowledge and experience in financial and business
matters that we are capable of evaluation the merits and risks of purchasing
Securities and we and any accounts for which we are acting are each able to bear
the economic risks for our or their investment.
5. We have received a copy of the Offering Memorandum dated July 28,
1998, and acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such questions of
representatives of the Issuer and receive answers thereto, as we deem necessary
in connection with our decision to purchase Securities.
6. We are not purchasing Securities for or on behalf of, and will
not transfer Securities to, any pension or welfare plan (as defined in Section 3
of ERISA), except as may be permitted under ERISA and as described under "Notice
to Investors" in the Offering Memorandum.
We understand that the Securities are being offered in a transaction
not involving any public offering within the meaning of the Securities Act and
that the Securities have not been registered under the Securities Act or any
securities laws of any State of the United States, and we agree on our own
behalf and on behalf of each account for which we acquire any Securities, that
such Securities may be offered, resold, pledged or otherwise transferred only
(i) to a person whom we reasonably believe to be a qualified institutional buyer
(as defined in Rule 144A under the Securities Act), in a transaction meeting the
requirements of Rule 144 under the Securities Act, outside the United States to
a non-U.S. person in a transaction meeting the requirements of Rule 904 under
the Securities Act or in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel if the
Issue so requests), (ii) to the Issuer or (iii) pursuant to an effective
registration statement and, in each case, in accordance with any applicable
securities laws of any State of the United States or any other applicable
jurisdiction. We understand that the Registrar will not be required to accept
for registration any Securities, except upon presentation of evidence
satisfactory to the Issuer that the foregoing restrictions on transfer have been
complied with. We further understand and agree that the Securities purchased by
us will bear a legend reflecting the substances of this paragraph. We agree to
notify any subsequent purchasers of the Securities from us of the resale
restrictions set forth above.
We acknowledge that you, the Issuer and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
C-2
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
[Name of Purchaser]
By________________________________
Name:
Title:
C-3
EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_______________, _______
Norwest Bank Minnesota, National Association, as Registrar
Norwest Center
Sixth & Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Services
Facsimile: (612) 667-9825
RE: GLOBE MANUFACTURING CORP. (THE "ISSUER")
10% SENIOR SECURED NOTES DUE 2008
-------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the 10% Senior Subordinated Notes due 2008 and related guarantees (the
"Securities"), we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and the transfer restrictions set forth in the
Securities and, accordingly, we represent that:
1. The offer of the Securities was not made to a person in the
United States;
2. Either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
"designated off-shore securities market" (as defined in Rule 904 of the
Securities Act) and neither we nor any person acting on our behalf knows that
the transaction has been pre-arranged with a buyer in the United States;
3. No directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable;
4. The transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
5. We have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By_____________________________
Name:
Title:
D-2