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J. BAKER, INC.,
as Issuer
THE GUARANTORS NAMED HEREIN,
as Guarantors
THE CHASE MANHATTAN BANK,
as Trustee
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INDENTURE
Dated as of _________ __, 1997
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$100,000,000
__% SENIOR SUBORDINATED NOTES DUE 2007
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE................... 1
SECTION 1.01 Definitions.................................................. 1
SECTION 1.02 Other Definitions............................................ 17
SECTION 1.03 Incorporation by Reference of Trust Indenture Act............ 18
SECTION 1.04 Rules of Construction........................................ 18
SECTION 1.05 Compliance Certificates and Opinions......................... 19
SECTION 1.06 Form of Documents Delivered to Trustee....................... 19
SECTION 1.07 Acts of Holders.............................................. 20
ARTICLE 2. THE NOTES ................................................... 21
SECTION 2.01 Form and Dating.............................................. 21
SECTION 2.02 Execution and Authentication................................. 22
SECTION 2.03 Registrar and Paying Agent................................... 22
SECTION 2.04 Paying Agent to Hold Assets in Trust......................... 23
SECTION 2.05 Holder Lists................................................. 23
SECTION 2.06 Transfer and Exchange........................................ 23
SECTION 2.07 Replacement Notes............................................ 28
SECTION 2.08 Outstanding Notes............................................ 29
SECTION 2.09 Treasury Notes............................................... 29
SECTION 2.10 Temporary Notes.............................................. 29
SECTION 2.11 Cancellation................................................. 30
SECTION 2.12 Defaulted Interest........................................... 30
SECTION 2.13 CUSIP Number................................................. 31
SECTION 2.14 Deposit of Moneys............................................ 31
ARTICLE 3. REDEMPTION AND OFFERS TO PURCHASE............................ 31
SECTION 3.01 Applicability of Article..................................... 31
SECTION 3.02 Election to Redeem; Notice to Trustee........................ 31
SECTION 3.03 Selection of Notes to Be Redeemed............................ 32
SECTION 3.04 Notice of Redemption......................................... 32
SECTION 3.05 Deposit of Redemption Price.................................. 33
SECTION 3.06 Notes Payable on Redemption Date............................. 33
SECTION 3.07 Notes Redeemed in Part....................................... 34
SECTION 3.08 Optional Redemption.......................................... 34
SECTION 3.09 Mandatory Redemption......................................... 35
SECTION 3.10 Offer to Purchase by Application of Excess Proceeds.......... 35
ARTICLE 4. COVENANTS.................................................... 37
SECTION 4.01 Payment of Notes............................................. 37
SECTION 4.02 Maintenance of Office or Agency.............................. 37
SECTION 4.03 Money for Security Payments to be Held in Trust.............. 38
SECTION 4.04 Reports...................................................... 39
SECTION 4.05 Compliance Certificate....................................... 40
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SECTION 4.06 Taxes........................................................ 41
SECTION 4.07 Stay, Extension and Usury Laws............................... 41
SECTION 4.08 Corporate Existence; Maintenance
of Properties and Insurance............................... 41
SECTION 4.09 Limitation on the Incurrence of Indebtedness and
Issuance of Preferred Stock............................... 42
SECTION 4.10 Limitation on Restricted Payments............................ 44
SECTION 4.11 Limitation on Liens.......................................... 46
SECTION 4.12 Limitation on Transactions with Affiliates................... 47
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.................................... 47
SECTION 4.14 Limitation on Issuances and Sales of Capital Stock of
Wholly Owned Restricted Subsidiaries...................... 48
SECTION 4.15 Limitation on Layering Debt.................................. 49
SECTION 4.16 Asset Sales.................................................. 49
SECTION 4.17 Offer to Repurchase Upon Change of Control................... 50
SECTION 4.18 Additional Subsidiary Guarantees............................. 52
SECTION 4.19 Payments for Consent......................................... 52
ARTICLE 5. SUCCESSORS................................................... 53
SECTION 5.01 Limitation on Merger, Consolidation or Sale of Assets........ 53
SECTION 5.02 Successor Corporation Substituted............................ 53
ARTICLE 6. DEFAULTS AND REMEDIES........................................ 54
SECTION 6.01 Events of Default............................................ 54
SECTION 6.02 Acceleration................................................. 56
SECTION 6.03 Other Remedies............................................... 56
SECTION 6.04 Waiver of Past Defaults...................................... 56
SECTION 6.05 Control by Majority.......................................... 57
SECTION 6.06 Limitation on Suits.......................................... 57
SECTION 6.07 Rights of Holders to Receive Payment......................... 57
SECTION 6.08 Collection Suit by Trustee................................... 58
SECTION 6.09 Trustee May File Proofs of Claim............................. 58
SECTION 6.10 Priorities................................................... 58
SECTION 6.11 Undertaking for Costs........................................ 59
ARTICLE 7. TRUSTEE...................................................... 59
SECTION 7.01 Duties of Trustee............................................ 59
SECTION 7.02 Rights of Trustee............................................ 61
SECTION 7.03 Individual Rights of Trustee................................. 62
SECTION 7.04 Trustee's Disclaimer......................................... 62
SECTION 7.05 Notice of Defaults........................................... 62
SECTION 7.06 Reports by Trustee to Holders of Notes....................... 62
SECTION 7.07 Compensation and Indemnity................................... 63
SECTION 7.08 Replacement of Trustee....................................... 64
SECTION 7.09 Successor Trustee by Merger, etc............................. 65
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SECTION 7.10 Eligibility; Disqualification................................ 65
SECTION 7.11 Preferential Collection of Claims Against Company............ 66
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..................... 66
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..... 66
SECTION 8.02 Legal Defeasance and Discharge............................... 66
SECTION 8.03 Covenant Defeasance.......................................... 67
SECTION 8.04 Conditions to Legal Defeasance or Covenant Defeasance........ 67
SECTION 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions..................... 69
SECTION 8.06 Repayment to Company......................................... 69
SECTION 8.07 Reinstatement................................................ 69
ARTICLE 9. AMENDMENTS................................................... 70
SECTION 9.01 Without Consent of Holders................................... 70
SECTION 9.02 With Consent of Holders...................................... 71
SECTION 9.03 Compliance with Trust Indenture Act.......................... 73
SECTION 9.04 Revocation and Effect of Consents............................ 73
SECTION 9.05 Notation on or Exchange of Notes............................. 73
SECTION 9.06 Trustee to Sign Amendments, etc.............................. 74
ARTICLE 10. SUBORDINATION............................................... 74
SECTION 10.01 Agreement to Subordinate.................................... 74
SECTION 10.02 Liquidation; Dissolution; Bankruptcy........................ 74
SECTION 10.03 Default on Designated Senior Debt........................... 75
SECTION 10.04 Acceleration of Notes....................................... 76
SECTION 10.05 When Distribution Must be Paid Over......................... 76
SECTION 10.06 Notice by Company........................................... 76
SECTION 10.07 Subrogation................................................. 77
SECTION 10.08 Relative Rights............................................. 77
SECTION 10.09 Subordination May Not be Impaired by Company................ 78
SECTION 10.10 Distribution or Notice to Representative.................... 78
SECTION 10.11 Rights of Trustee and Paying Agent.......................... 78
SECTION 10.12 Authorization to Effect Subordination....................... 78
ARTICLE 11. SATISFACTION AND DISCHARGE.................................. 79
SECTION 11.01 Satisfaction and Discharge of Indenture..................... 79
SECTION 11.02 Application of Trust Money.................................. 80
ARTICLE 12. SUBSIDIARY GUARANTEES....................................... 81
SECTION 12.01 Subsidiary Guarantee........................................ 81
SECTION 12.02 Obligation of the Guarantors Unconditional ................. 82
SECTION 12.03 Waiver Relating to Subsidiary Guarantees
SECTION 12.04 Subordination of Subsidiary Guarantees
SECTION 12.05 Guarantors May Consolidate, etc., on Certain Terms.......... 82
SECTION 12.06 Release of Subsidiary Guarantee............................. 83
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SECTION 12.07 Contribution of Guarantors.................................. 84
SECTION 12.08 Reinstatement of Subsidiary Guarantees...................... 84
ARTICLE 13. MISCELLANEOUS............................................... 85
SECTION 13.01 Trust Indenture Act Controls................................ 85
SECTION 13.02 Notices..................................................... 85
SECTION 13.03 Communication by Holders with Other Holders................. 86
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.......... 86
SECTION 13.05 Rules by Trustee and Agents................................. 86
SECTION 13.06 Legal Holidays.............................................. 86
SECTION 13.07 No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders........................... 87
SECTION 13.08 Governing Law; Submission to Jurisdiction................... 87
SECTION 13.09 No Adverse Interpretation of Other Agreements............... 87
SECTION 13.10 Successors and Assigns...................................... 87
SECTION 13.11 Severability................................................ 87
SECTION 13.12 Counterpart Originals....................................... 88
SECTION 13.13 Table of Contents, Headings, etc............................ 88
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture Section
Act Section
310(a)(1)..........................................................7.10
(a)(2)........................................................7.10
(a)(3)........................................................N.A.
(a)(4)........................................................N.A.
(a)(5)........................................................7.10
(b)...........................................................7.10
(c)...........................................................N.A.
311(a).............................................................7.11
(b)...........................................................7.11
(c)...........................................................N.A.
312(a)............................................................11.03
(b)..........................................................11.03
(c)..........................................................11.03
313(a).............................................................7.06
(b)(1)........................................................N.A.
(b)(2)........................................................7.06; 7.07
(c)...........................................................7.06; 10.02
(d)...........................................................7.06
314(a).............................................................4.04; 11.02
(b)...........................................................N.A.
(c)(1).......................................................11.04
(c)(2).......................................................11.04
(c)(3)........................................................N.A.
(d)...........................................................N.A.
(f)...........................................................N.A.
315(a).............................................................7.01
(b)...........................................................7.05; 11.02
(c)...........................................................7.01
(d)...........................................................7.01
(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)............................................................11.01
(b)...........................................................N.A.
(c)..........................................................11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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INDENTURE, dated as of _________ ___, 1997, among J. BAKER,
INC., a Massachusetts corporation (the "Company"), as Issuer, Buckmin, Inc., a
Massachusetts corporation, The Casual Male, Inc., a Massachusetts corporation,
ELM Equipment Corp., a Massachusetts corporation, ISAB, Inc., a Delaware
corporation, Jared Corporation, a Puerto Rico corporation, JBI Holding Co.,
Inc., a Delaware corporation, JBI, Inc., a Massachusetts corporation, Morse Shoe
(Canada) Ltd., a Canadian corporation, Morse Shoe, Inc., a Delaware corporation,
Morse Shoe International, Inc., a Delaware corporation, Spencer Companies,
Inc., a Massachusetts corporation, Spencer No. 301 Corp., a New York
corporation, TCMB&T, Inc., a Massachusetts corporation, TCM Holding Co., Inc.,
a Delaware corporation, White Cap Footwear, Inc., a Delaware corporation, and
WGS Corp., a Massachusetts corporation, as Guarantors, and The Chase Manhattan
Bank, a New York banking corporation, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the _____% Senior Subordinated Notes due 2007 of the Company (the
"Notes").
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness or preferred stock of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary of such
specified Person, including, without limitation, Indebtedness or preferred stock
incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Subsidiary of such specified Person, and (ii)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
"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;
provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
"Agent" means any Registrar or Paying Agent.
"Agent Members" means members of, or participants in, the
Depositary.
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"Amended Credit Facility" means that certain Amended and
Restated Credit Agreement, dated as of ______________, by and among The Casual
Male, Inc., TCM Holding Co., Inc., WGS Corp., TCMB&T, Inc., JBI, Inc., JBI
Holding Company, Inc., and Morse Shoe, Inc. as borrowers; J. Baker, Inc., as
parent guarantor; the lenders identified therein; Fleet National Bank, as
administrative agent; and BankBoston, N.A., as documentation agent, providing
for up to $100.0 million of revolving credit borrowings, including any related
notes, guarantees (including, but not limited to, the guarantees of Spencer
Companies, Inc., Buckmin, Inc., Elm Equipment Corp., ISAB, Inc., Morse Shoe
International, Inc., Morse Shoe (Canada) Ltd., Jared Corporation and White Cap
Footware, Inc., as subsidiary guarantors), collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified (including any agreement extending the maturity of, increasing the
total commitment under or otherwise restructuring all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement),
renewed, refunded, replaced, restated, supplemented or refinanced from time
to time.
"Applicable Procedures" means applicable procedures of the
Depositary.
"Asset Sale" means (i) the sale, lease, conveyance, transfer,
exchange or other disposition (collectively, "dispositions") of any assets or
rights (including, without limitation, by way of a sale and leaseback) other
than dispositions of inventory in the ordinary course of business consistent
with past practices and going out of business sales conducted in a manner
consistent with past practices (provided that the disposition of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole will be governed by the provisions of Section 4.17 hereof and/or the
provisions of Section 5.01 hereof and not by the provisions of Section 4.16
hereof), and (ii) the issuance of Equity Interests by any Restricted Subsidiary
or the disposition by the Company or a Restricted Subsidiary of Equity Interests
in any of the Company's Restricted Subsidiaries, in the case of either clause
(i) or (ii), whether in a single transaction or a series of related transactions
(a) that have a fair market value in excess of $1.0 million or (b) for net
proceeds in excess of $1.0 million. Notwithstanding the foregoing: (i) a
transfer of assets or Equity Interests by the Company to a Wholly Owned
Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company
or to another Wholly Owned Restricted Subsidiary, (ii) an issuance of Equity
Interests by a Wholly Owned Restricted Subsidiary to the Company or to another
Wholly Owned Restricted Subsidiary, (iii) the disposal of obsolete equipment and
machinery in the ordinary course of business and (iv) a Restricted Payment that
is permitted to be made, and is made, under Section 4.10 hereof will not be
deemed to be Asset Sales.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
foreign, federal or state law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any duly authorized committee of such Board
of Directors.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors
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of the Company and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Borrowing Base" means, as of any date, an amount equal to the
sum of (a) 85% of the face amount of all trade receivables owned by the Company
and its Wholly Owned Restricted Subsidiaries as of such date that are not more
than 90 days past due, less the allowance for doubtful accounts, each of the
foregoing determined in accordance with GAAP, and (b) 50% of the book value of
all inventory owned by the Company and its Wholly Owned Restricted Subsidiaries
as of such date, less any applicable reserves, each of the foregoing determined
in accordance with GAAP. To the extent that information is not available as to
the amount of trade receivables or inventory as of a specific date, the Company
may utilize the most recent available information for purposes of calculating
the Borrowing Base.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law, regulation or executive order to close.
"Canton Property" means the property described under
"Description of Credit Facilities and Other Indebtedness - Mortgage Loan" in
the Prospectus.
"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 six
months and overnight bank deposits, in each case with any lender party to the
Amended Credit Facility or with any domestic commercial bank having capital and
surplus in excess of $500.0 million, (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 rated
at least P-1 by Moody's or A-1 by S&P and in each case maturing within six
months after the date of acquisition and (vi) investment funds with total assets
in excess of $500.0 million that invest at least 95% of their assets in
securities of the types described in clauses (i) through (v) above.
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"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition, in
one or a series of related transactions, directly or indirectly, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to any Person or "group" (as such term is used in Section
13(d)(3) of the Exchange Act), (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any Person or group becomes the "beneficial owner" (as
such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except
that a Person shall be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 35% of the Voting Stock of the
Company (measured by voting power rather than number of shares) or (iv) the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor thereto.
"Company" means J. Baker, Inc., a Massachusetts corporation,
and any successor thereto pursuant to Section 5.01 hereof.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company (i) by its Chairman, a Vice Chairman,
its President or a Vice President and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Consolidated EBITDA" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus (i)
consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (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, 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, less
consolidated interest income of such person and its Restricted Subsidiaries for
such period, plus (ii) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted or otherwise taken account of in computing such
Consolidated Net Income, plus (iii) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to
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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, plus (iv) an amount equal to
any extraordinary, non-recurring or unusual loss plus any net loss realized in
connection with an Asset Sale (to the extent such losses were deducted or
otherwise taken account of in computing such Consolidated Net Income), plus (v)
the $37.3 million charge related to a reduction in the Company's licensed shoe
department business' inventory to net realizable value and the $1.2 million
charge to increase the Company's allowance for doubtful accounts for certain
licensors which the Company ceased serving, in each case recorded in the
Company's fiscal year ended February 1, 1997 to the extent that any such charge
was deducted in computing such Consolidated Net Income, plus (vi) an amount
equal to all premiums on prepayments of debt paid by the Company and its
Restricted Subsidiaries during such period to the extent that such payments were
deducted in computing such Consolidated Net Income, minus (vii) non-cash items
increasing such Consolidated Net Income for such period, in each case, for such
period without duplication on a consolidated basis and determined in accordance
with GAAP. Notwithstanding the foregoing, the provision for taxes on the income
or profits of, and the depreciation and amortization and other non-cash charges
of, a Restricted Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated EBITDA only to the extent that a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), and without direct or indirect restriction
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to that
Subsidiary or its stockholders.
"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 of such Person 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 that is a Guarantor and shall not
exceed the consolidated net income of such Person for such period, (ii) the net
income (but not loss) 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 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
shall be excluded and (v) all gains resulting from currency or hedging
transactions shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as
of any date, the consolidated stockholders' equity of such Person and its
consolidated Subsidiaries as of
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such date, less, to the extent otherwise included, amounts attributable to
Disqualified Stock, in each case determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the affirmative vote of a
majority of the Continuing Directors who were members of such Board at the time
of such nomination or election.
"Corporate Trust Office of the Trustee" means the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at The Chase Manhattan Bank, Global
Trust Services, 450 West 33rd Street, 15th Floor, New York, New York 10001-2697.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"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.
"Definitive Notes" means Notes that are substantially in the
form of the Notes attached hereto as Exhibit A that do not contain the Global
Note Legend.
"Depositary" means, with respect to any Global Note, the
Person specified in Section 2.03 hereof as the Depositary with respect to such
Note, until a successor shall have been appointed and become such pursuant to
the applicable provision of this Indenture, and, thereafter, "Depositary" shall
mean or include such successor.
"Designated Senior Debt" of any Person means (i) any
Indebtedness of such Person outstanding under the Amended Credit Facility and
(ii) any other Senior Debt of such Person, the principal amount of which is $5.0
million or more and that has been designated by the Company as "Designated
Senior Debt" of such Person.
"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
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes mature.
"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).
"Event of Default" has the meaning set forth in Section 6.01
hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Existing Indebtedness" means up to $____ million in aggregate
principal amount of Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the Amended Credit Facility) in existence on the date of this
Indenture and set forth on Schedule I hereto, until such amounts are repaid.
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any period, the ratio of the Consolidated EBITDA of such Person for
such period to the Fixed Charges of such Person for such period. In the event
that the Company or any of its Restricted Subsidiaries incurs, assumes,
guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or redemption of Indebtedness, 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 that have been made
by the Company or any of its Restricted Subsidiaries, including through mergers
or consolidations 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
EBITDA 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 EBITDA 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
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 Fixed Charges will not be obligations of the referent Person
or any of its Restricted Subsidiaries following the Calculation Date.
Calculations of pro forma amounts in accordance with this definition shall be
done in accordance with Article 11 of Regulation S-X under the Securities Act or
any successor provision.
"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 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, 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 for such
period on Indebtedness of another Person that is
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14
Guaranteed by such Person or any of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or any of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon) and (iv) the product of (x) all
dividend payments during such period (including all dividend payments within 60
days of the last day of such period), whether or not in cash, on any class or
series of (A) Disqualified Stock of such Person or (B) preferred stock of any
Restricted Subsidiary of such Person, other than dividend payments on Equity
Interests payable solely in Equity Interests of the Company and other than
payments to such Person and its Wholly Owned Restricted Subsidiaries, and (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, determined, in each case, on a consolidated
basis and in accordance with GAAP.
"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 in the United States from time
to time.
"Global Note" means a permanent global Note that contains the
Global Note Legend, and that is deposited with the Note Custodian and registered
in the name of the Depositary.
"Global Note Legend" means the legend set forth in Section
2.06(e) hereof.
"Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) 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 Government
Securities or a specific payment of principal of or interest on any such
Government Securities 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 Government Securities or the specific payment of principal of or
interest on the Government Securities evidenced by such depository receipt.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
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15
"Guarantor" means (i) each of the Guarantors named herein and
(ii) each other Person that becomes a guarantor of the obligations of the
Company under the Notes and this Indenture from time to time in accordance with
the provisions of this Indenture, and their respective successors and assigns;
provided, however, that "Guarantor" shall not include any Person that is
released from its Guarantee of the obligations of the Company under the Notes
and this Indenture as provided in Article 12 hereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, currency
rate swap agreements, interest rate cap agreements and interest rate collar
agreements and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency values.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" 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
Indebtedness of others secured by a Lien on any asset of such Person (but only
to the extent of the fair market value of the assets subject to such Lien)
(whether or not such Indebtedness is assumed by such Person) and, to the extent
not otherwise included, the Guarantee by such Person of any Indebtedness of any
other Person.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Interest Payment Date" means each May __ and November __.
"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 Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
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; provided, however, that if the sole consideration for any such investment
is Capital Stock of the Company that is not Disqualified Stock, then such
investment shall not be deemed an Investment for purposes of this Indenture. If
the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect
- 9 -
16
Wholly Owned Restricted Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a Wholly Owned
Restricted Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in the final paragraph of
Section 4.10 hereof.
"Issuance Date" means the closing date for the sale and
original issuance of the Notes under this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset (including any conditional sale or other title retention agreement and any
lease in the nature thereof).
"Make-Whole Premium" means, with respect to a Note, an amount
equal to the greater of (i) _____% of the outstanding principal amount of such
Note and (ii) the excess of (a) the present value of the remaining interest,
premium and principal payments due on such Note as if such Note were redeemed on
November __, 2002, computed using a discount rate equal to the Treasury Rate
plus 75 basis points, over (b) the outstanding principal amount of such Note.
"Maturity" when used in respect to any Note means the date on
which the principal of (and premium, if any) and interest on such Note becomes
due and payable as therein or herein provided, whether at Stated Maturity or the
applicable Redemption Date and whether by declaration of acceleration, call for
redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc., or its
successors.
"Net Income" means, with respect to any Person for any period,
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 or (b) the disposition of any securities by such Person or any of its
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Subsidiaries and (ii) any extraordinary, unusual 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 Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale, but only
as and when received), net of the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees,
- 10 -
17
and sales commissions) and any relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements), amounts
required to be applied to the repayment of Indebtedness secured by a Lien on the
asset or assets (including Equity Interests) that were the subject of such Asset
Sale, any provision for permitted minority interests in any Restricted
Subsidiary as a result of such Asset Sale and any reserve established in
accordance with GAAP against any liabilities associated with the assets sold or
disposed of in such Asset Sale, including, without limitation, sales price
adjustments, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such Asset Sale or
provision for minority interest holders in any Restricted Subsidiary as a result
of such Asset Sale.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a 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 Indebtedness of the
Company or any of its Restricted Subsidiaries in excess of $5.0 million to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
"Note Custodian" means the custodian for the Depositary of the
Global Note or any successor entity thereto.
"Notes" means $100,000,000 aggregate principal amount of the
Company's ____% Senior Subordinated Notes due 2007 issued pursuant to this
Indenture.
"Obligations" means any principal, premium, interest
(including post-petition interest), penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Secretary or any Assistant Secretary of such
Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by the Chief Executive Officer or
President and by the Chief Financial Officer or chief accounting officer of such
Person.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee, that meets the requirements of Section
1.05 hereof and, to the extent required by the TIA, complies with TIA Section
314.
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18
"Permitted Investment" means (a) any Investment in the Company
or in a Wholly Owned Restricted Subsidiary of the Company; (b) any Investment in
Cash Equivalents; (c) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment (i) such Person
becomes a Wholly Owned Restricted Subsidiary of the Company and a Guarantor or
(ii) such Person is merged, consolidated or amalgamated with or into the Company
or into a Wholly Owned Restricted Subsidiary of the Company, or is liquidated
into the Company or a Wholly Owned Restricted Subsidiary of the Company; (d) 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 hereof;
(e) any acquisition of assets solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company; (f) reasonable and
customary loans and advances consistent with past practices made to employees in
connection with their relocation (including related travel expenses) not to
exceed $1.0 million in the aggregate at any one time outstanding; (g) any
Investment existing on the date of this Indenture; (h) any Investment acquired
by the Company or any of its Restricted Subsidiaries (x) in exchange for any
other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such Investment or
accounts receivable or (y) as the result of a foreclosure by the Company or any
of its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default; and (i)
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 (i) that are at the time outstanding, not to exceed
$2.0 million.
"Permitted Junior Securities" means Equity Interests in the
Company or debt securities that are subordinated to all Senior Debt of the
issuer of such debt securities (and any debt securities issued in exchange for
Senior Debt of the issuer of such debt securities) to substantially the same
extent as, or to a greater extent than, the Notes are subordinated to Senior
Debt.
"Permitted Liens" means (i) Liens securing Senior Debt that
was permitted by the terms of this Indenture to be incurred; (ii) Liens in favor
of the Company or any Restricted Subsidiary; (iii) Liens on property of a Person
existing at the time such Person is merged into or consolidated with the Company
or any Restricted Subsidiary of the Company; 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 Company or such Restricted Subsidiary; (iv) Liens on property existing
at the time of acquisition thereof by the Company or any Restricted Subsidiary
of the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (v)
Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (iii) of the second paragraph of Section 4.09 hereof covering only the
assets acquired with such Indebtedness; (vi) Liens existing on the date of this
Indenture; (vii) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or
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19
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (viii) Liens imposed by law, such as landlords', carriers',
warehousemens', mechanics', suppliers' or similar Liens incurred in good faith
in the ordinary course of business of the Company or any Restricted Subsidiary
of the Company with respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings if a reserve or other appropriate
provision, if any, shall have been made therefor as shall be required by GAAP;
(ix) easements, minor title defects, irregularities in title or other charges or
encumbrances on property that do not, in the aggregate, materially detract from
the value of the property or the assets of the Company and its Restricted
Subsidiaries or impair the use of such property by the Company or a Restricted
Subsidiary of the Company; (x) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (xi) Liens securing industrial
revenue bonds or other similar tax-favored financing; and (xii) other Liens
securing obligations incurred in the ordinary course of business which
obligations do not exceed $10.0 million at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Hedging Obligations and other than
Indebtedness permitted to be incurred pursuant to clause (v) or clause (x) of
the second paragraph of Section 4.09 hereof) of the Company or any of its
Restricted Subsidiaries; provided that: (i) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus accrued
interest on, the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses and prepayment
premiums incurred in connection therewith) (except to the extent such increase
is a result of a simultaneous incurrence of additional Indebtedness permitted to
be incurred under this Indenture); (ii) such Permitted Refinancing Indebtedness
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 Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, and is
subordinated in right of payment to the Notes on terms at least as favorable to
the Holders of Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, limited or general partnership,
corporation, limited liability company, association, unincorporated
organization, trust, joint stock
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20
company, joint venture or other entity, or a government or any agency or
political subdivision thereof.
"preferred stock" means any Equity Interest with preferential
right of payment of dividends or upon liquidation, dissolution, or winding up.
"Prospectus" means the prospectus relating to the offering of
the Notes, dated ________ __, 1997.
"Public Equity Offering" means a bona fide underwritten sale
to the public of common stock of the Company pursuant to a registration
statement (other than on Form S-8 or any other form relating to securities
issuable under any benefit plan of the Company) that is declared effective by
the SEC and results in aggregate gross equity proceeds to the Company of at
least $20.0 million.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price (exclusive of any accrued and unpaid interest
thereon) at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the ___________ __ or _____________ __ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee,
shall mean any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Senior Debt" of any Person means (i) the Obligations of such
Person under the Amended Credit Facility, including, without limitation, Hedging
Obligations and reimbursement obligations in respect of letters of credit and
bankers acceptances, and (ii) any
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21
other Indebtedness of such Person permitted to be incurred by such Person under
the terms of this Indenture, unless the instrument under which such Indebtedness
is incurred expressly provides that it is on a parity with or subordinated in
right of payment to the Notes. Notwithstanding anything to the contrary in the
foregoing, Senior Debt of a Person shall not include (v) any obligation to, in
respect of or imposed by any environmental, landfill, waste management or other
regulatory or governmental agency, statute, law or court order, (w) any
liability for federal, state, local or other taxes, (x) any Indebtedness of such
Person to any of its Subsidiaries or other Affiliates, (y) any trade payables or
(z) any Indebtedness that is incurred in violation of this Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"S&P" means Standard & Poor's Rating Group, or its successors.
"Special Record Date" means a date fixed by the Trustee for
the payment of any Defaulted Interest pursuant to Section 2.12 hereof.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, 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).
"Subsidiary Guarantee" means any guarantee of the obligations
of the Company pursuant to this Indenture and the Notes by any Person in
accordance with the provisions of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, then "TIA" means, to the
extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
"Treasury Rate" means the yield to maturity at the time of the
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15(519)), which has become publicly
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22
available at least two Business Days prior to the date fixed for prepayment (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data) most nearly equal to the then remaining average
life to the first date on which the Notes are subject to optional redemption by
the Company; provided, however, that if the average life of the Notes is not
equal to the constant maturity of the United States Treasury security for which
weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the average life of the Notes is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such above until a
successor replaces it in accordance with applicable provisions of this Indenture
and thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that is designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; (c) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; and (d)
has not guaranteed or otherwise directly or indirectly provided credit support
for any Indebtedness of the Company or any of its Restricted Subsidiaries. Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions and was permitted by
Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary would fail to
meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date (and, if such Indebtedness
is not permitted to be incurred as of such date under Section 4.09 hereof, the
Company shall be in default of such covenant). The Board of Directors of the
Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation shall be deemed to be an incurrence
of Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation.
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23
"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 at
least a majority of the Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness 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 Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock and
other Equity Interests or other ownership interests (including convertible debt
securities) of which (other than directors' qualifying shares) shall at the time
be owned by such Person and/or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.02 Other Definitions
DEFINED
TERM IN SECTION
---- ----------
"Act" 1.07
"Affiliate Transaction" 4.12
"Asset Sale Offer" 3.10
"Change of Control Offer" 4.17
"Change of Control Payment" 4.17
"Change of Control Payment Date" 4.17
"Contributor" 12.07
"Covenant Defeasance" 8.03
"Defaulted Interest" 2.12
"DTC" 2.03
"Excess Proceeds" 4.16
"Expiration Date" 4.17
"Funding Party" 12.07
"Guaranteed Obligations" 12.01
"incur" 4.09
"JBAK Holding" 4.18
"JBAK Realty" 4.18
"Legal Defeasance" 8.02
"Offer Amount" 3.10
"Offer Period" 3.10
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
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"Payment Default" 6.01
"Permitted Debt" 4.09
"Purchase Date" 3.10
"Registrar" 2.03
"Restricted Payments" 4.10
"SEC Reports" 4.04
SECTION 1.03 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes and the Subsidiary
Guarantees;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company, each Guarantor and
any successor obligors upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04 Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
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(6) references to sections of or rules under the Securities
Act or the Exchange Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to time.
SECTION 1.05 Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion (other than the certificates
required by Section 4.05(a) hereof) with respect to compliance with a condition
or covenant provided for in this Indenture shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.06 Form of Documents Delivered to Trustee
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel,
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unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representation with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel, may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.07 Acts of Holders
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to TIA Section 315) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section 1.07.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner that the
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by a register kept
by the Registrar.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act
or to revoke any consent previously given, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), any such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not more than 30 days prior to the first solicitation of
Holders generally in connection therewith and no later than the date such
solicitation is completed.
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If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act or revocation of
any consent previously given may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Notes then outstanding have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for this purpose the Notes then outstanding shall be
computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Note shall bind every future
Holder of the same Note or the Holder of every Note issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Note.
ARTICLE 2.
THE NOTES
SECTION 2.01 Form and Dating
The Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit A attached
hereto, with such appropriate insertions, substitutions and other variations as
are required or permitted by this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage, as
designated by the Company or its counsel. Each Note shall be dated the date of
its authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the Global Note Legend). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto
(but without the Global Note Legend). The Global Note shall represent such of
the outstanding Notes as shall be specified therein and the aggregate principal
amount of outstanding Notes represented thereby from time to time shall be
reflected on the records maintained by the Trustee. The aggregate principal
amount of outstanding Notes represented by a Global Note may from time to time
be reduced or increased, as appropriate, to reflect transfers, exchanges,
repurchases and redemptions. Any increase or decrease in the aggregate principal
amount outstanding of a Global Note shall be reflected on the records maintained
by the Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
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SECTION 2.02 Execution and Authentication
Two Officers of the Company shall sign the Notes for the
Company by manual or facsimile signature. The seal of the Company shall be
reproduced on the Notes and may be in facsimile form.
If an Officer of the Company whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note so authenticated has been duly authenticated and
delivered hereunder.
The Trustee shall, by written order of the Company signed by
two Officers, authenticate Notes for original issue in the aggregate principal
amount of up to $100,000,000. Except as contemplated by Section 2.07 hereof, the
aggregate principal amount of Notes outstanding at any time may not exceed
$100,000,000.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with any Holder, the Company or an Affiliate of the
Company. The Trustee shall not be liable for any act or failure to act of the
authenticating agent to perform any duty either required herein or authorized
herein to be performed by such person in accordance with this Indenture. Each
authenticating agent shall be acceptable to the Company and otherwise comply in
all respects with the eligibility requirements of the Trustee contained in this
Indenture.
SECTION 2.03 Registrar and Paying Agent
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented or surrendered for payment
("Paying Agent"). The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more additional paying
agents. The term "Paying Agent" includes any additional paying agents. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation in accordance with Section 7.07
hereof. The Company or any of its Subsidiaries may not act as Paying Agent or
Registrar.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The
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Company initially appoints The Depository Trust Company ("DTC") to act as
Depositary with respect to the Global Note.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Note.
SECTION 2.04 Paying Agent to Hold Assets in Trust
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest on the Notes (whether such
assets have been distributed to it by the Company or any other obligor on the
Notes), and will notify the Trustee of any default by the Company or any
Guarantor or any other obligor on the Notes in making any such payment. While
any such default continues, the Trustee may require a Paying Agent to distribute
all assets held by it to the Trustee and account for any assets disbursed. The
Company at any time may require a Paying Agent to pay all assets held by it to
the Trustee and account for any assets disbursed. Upon payment over and
accounting to the Trustee, the Paying Agent shall have no further liability for
the assets. Upon any bankruptcy or reorganization proceedings relating to the
Company or any Guarantor, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05 Holder Lists
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company and/or the Guarantors shall
furnish to the Trustee at least seven Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Notes, including the aggregate principal amount
of Notes held by each Holder, and the Company and/or the Guarantors shall
otherwise comply with TIA Section 312(a).
SECTION 2.06 Transfer and Exchange
(a) Transfer and Exchange of the Global Note. The Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. The Global Note
will be exchanged by the Company for Definitive Notes if, and only if, either
(i) the Depositary is at any time unwilling or unable to continue as depositary
and a successor depositary is not appointed by the Company within 90 days, (ii)
an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depositary to issue Definitive Notes in lieu of all
or a portion of the Global Note (in which case the Company shall deliver
Definitive Notes within 30 days of such request), or (iii) the Company
determines not to have the Notes represented by a Global
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Note. Upon the occurrence of any of the preceding events in (i), (ii) or (iii)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. The Global Note also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, the Global Note or
any portion thereof, pursuant to Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. The
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a); however, beneficial interests in the Global Note may be
transferred and exchanged as provided in Section 2.06(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Note. The transfer and exchange of beneficial interests in the Global
Note shall be effected through the Depositary, in accordance with the provisions
of the Applicable Procedures.
(c) Transfer or Exchange of Beneficial Interests in the Global
Note for Definitive Notes. If beneficial interests in the Global Note are to be
exchanged for Definitive Notes pursuant to Section 2.06(a) hereof, the
Depositary shall give instructions to the Registrar containing information
regarding the Person in whose name such Definitive Notes shall be registered to
effect such registration of transfer or exchange. Upon satisfaction of the above
conditions, the Trustee shall cause the aggregate principal amount of the Global
Note to be reduced accordingly pursuant to Section 2.06(f) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Agent Member. The Trustee shall deliver such Definitive Notes
to the Persons in whose names such Notes are so registered.
(d) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(d), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. A Holder of Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of a
Definitive Note. Upon receipt of a request to register such a transfer, the
Registrar shall register the Definitive Notes pursuant to the instructions from
the Holder thereof.
(e) Legends. The Global Note shall bear a legend in
substantially the following form:
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"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT 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 OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) ("DTC") TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(f) Cancellation and/or Adjustment of the Global Note. At such
time as all beneficial interests in the Global Note have been exchanged for
Definitive Notes or the Global Note has been redeemed, repurchased or cancelled
in whole and not in part, the Global Note shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in the Global Note is
exchanged for Definitive Notes, the principal amount of Notes represented by
the Global Note shall be reduced accordingly and a notation shall be made on
the records of the Trustee, by the Trustee, to reflect such reduction.
(g) General Provisions with respect to Transfer and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate,
pursuant to the terms of this Indenture, the Global Note and
the Definitive Notes upon receipt of a Company Order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in the Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange,
but the Company 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
similar governmental charges payable upon exchange or transfer
pursuant to Sections 2.10, 3.07, 4.16, 4.17 and 9.05 hereof).
(iii) Neither the Company nor the Registrar shall be
required to register the transfer or exchange of any Note
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
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(iv) The Global Note and all Definitive Notes issued upon
any registration of transfer or exchange of the Global Note or
the Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture as the Global Note or the
Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue or to
register the transfer or exchange of Notes during a period
beginning at the opening of business 15 days before the day of
any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company
or any agent of the Trustee or any Agent of the Company may
deem and treat the Person in whose name any Note is registered
as the absolute owner of such Note for the purpose of
receiving payment of principal of, premium, if any, and
interest on such Note and for all other purposes, and none of
the Trustee, any Agent nor the Company or any agent of the
Trustee or any Agent of the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate the Global Note and
the Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
SECTION 2.07 Replacement Notes
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee and the Company receive evidence to their satisfaction
of the destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Note if the Trustee's and the
Company's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a Note
is replaced. The Company and the Trustee may charge for their expenses in
replacing a Note. If after the delivery of such new Note, a bona fide purchaser
of the original Note in lieu of which such new Note was issued presents for
payment such original Note, the Company and the Trustee shall be entitled to
recover such new Note from the person to whom it was delivered or any transferee
thereof, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Company or the Trustee in connection therewith.
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Every replacement Note is an additional obligation of the
Company and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
SECTION 2.08 Outstanding Notes
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in the Global Note
effected by the Trustee hereunder in accordance with the provisions hereof, and
those described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because either of
the Company or an Affiliate of the Company holds a Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on the Redemption Date or maturity date, money
sufficient to pay all principal, interest and premium, if any, payable on that
date on the Notes (or the portion thereof to be redeemed or maturing, as the
case may be), then on and after that date such Notes (or portions thereof) shall
be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09 Treasury Notes
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any Affiliate of the Company shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. The Company shall notify the Trustee, in writing, when
the Company or any of its Affiliates repurchases or otherwise acquires Notes and
the aggregate principal amount of such Notes so repurchased or otherwise
acquired.
SECTION 2.10 Temporary Notes
Until permanent Notes are ready for delivery, the Company may
prepare and the Trustee, upon receipt of the written order of the Company signed
by two Officers of the Company, shall authenticate and deliver temporary Notes.
Temporary Notes shall be substantially in the form of permanent Notes but may
have variations that the Company and the Trustee consider appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of the written order of the Company
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signed by two Officers of the Company, shall authenticate and deliver,
definitive Notes in exchange for temporary Notes.
Until such exchange, Holders of temporary Notes shall be
entitled to all of the rights, benefits and privileges of this Indenture.
SECTION 2.11 Cancellation
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation, except as expressly
permitted by this Indenture. The Company may not issue new Notes to replace
Notes that it has redeemed or paid or that have been delivered to the Trustee
for cancellation. All cancelled Notes held by the Trustee shall be destroyed
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all cancelled Notes shall be delivered to the Company.
SECTION 2.12 Defaulted Interest
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Note is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the applicable interest rate borne by the Notes,
to the extent lawful (such defaulted interest (and interest thereon) herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest shall be paid by the Company to the Persons
in whose names the Notes are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall give the Trustee at least 15 days'
written notice (unless a shorter period is acceptable to the Trustee for its
convenience) of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held by the Trustee in
trust for the benefit of the Persons entitled to such Defaulted Interest as is
provided in this Section 2.12. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall not be more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class
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postage prepaid, to each Holder at his address as it appears in the Registrar,
not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Notes are registered at the close of business on such Special Record
Date.
Subject to the foregoing provisions of this Section 2.12, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13 CUSIP Number
The Company in issuing the Notes shall use a CUSIP number, and
the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders of Notes; provided, however, that no representation is
hereby deemed to be made by the Trustee as to the correctness or accuracy of the
CUSIP number printed in the notice or on the certificates representing the
Notes, and that reliance may be placed only on the other identification numbers
printed on the certificates representing the Notes. The Company will promptly
notify the Trustee of any change in a CUSIP number.
SECTION 2.14 Deposit of Moneys
On each Interest Payment Date and each date on which payments
in respect of the Notes are required to be made pursuant to the terms of this
Indenture, the Company shall, not later than noon (New York City time), deposit
with the Paying Agent in immediately available funds money sufficient to make
any cash payments due on such date in a timely manner which permits the Paying
Agent to remit payment to the Holders on such date.
ARTICLE 3.
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.01 Applicability of Article
Redemption of Notes at the election of the Company shall be
made in accordance with this Article 3.
SECTION 3.02 Election to Redeem; Notice to Trustee
The election of the Company to redeem any Notes pursuant to
Section 3.08 hereof shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45 but
not more than 60 days prior to the Redemption Date fixed by it (unless a shorter
notice period shall be satisfactory to the
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Trustee for its convenience), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed.
SECTION 3.03 Selection of Notes to Be Redeemed
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption shall be made by the Trustee in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided that no Notes of $1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company and the
Registrar (if other than the Trustee) in writing of the Notes selected for
redemption and, in the case of any Notes selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall relate,
in the case of any Note redeemed or to be redeemed only in part, to the portion
of the principal amount of such Note which has been or is to be redeemed.
SECTION 3.04 Notice of Redemption
Notices of redemption shall be mailed by first class mail,
postage prepaid, at least 30 but not more than 60 days before the Redemption
Date to each Holder of Notes to be redeemed at such Holder's registered address.
If any Note is to be redeemed in part only, the notice of redemption that
relates to such Note shall state the portion of the principal amount thereof to
be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, separately stating the amount of any
accrued and unpaid interest to be paid in connection with the
redemption;
(3) if less than all Notes then outstanding are to be
redeemed, the identification (and, in the case of a Note to be redeemed
in part, principal amount) of such Note to be redeemed;
(4) that on the Redemption Date the Redemption Price, plus
accrued and unpaid interest thereon to the Redemption Date, will become
due and payable upon each such Note or portion thereof, and that
(unless the Company shall default in payment of the Redemption Price
and accrued interest thereon) interest thereon shall cease to accrue on
or after said date;
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(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued interest thereon;
(6) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price, plus accrued and
unpaid interest thereon to the Redemption Date;
(7) the CUSIP number, if any, relating to such Notes; and
(8) in the case of a Note to be redeemed in part, the
principal amount of such Note to be redeemed and that after the
Redemption Date upon surrender of such Note, a new Note or Notes in the
aggregate principal amount equal to the unredeemed portion thereof will
be issued.
At the Company's request, the Trustee shall give the notice of
redemption in the name of the Company and at its expense: provided, however,
that the Company shall deliver to the Trustee, at least 45 days prior to the
Redemption Date (unless a shorter notice period shall be satisfactory to the
Trustee for its convenience), an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
SECTION 3.05 Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit
with the Trustee (to the extent not already held by the Trustee) or with the
Paying Agent an amount of money in same day funds (or New York Clearing House
funds if such deposit is made prior to the applicable Redemption Date)
sufficient to pay the Redemption Price of, and accrued and unpaid interest to
the Redemption Date on, all Notes or portions thereof which are to be redeemed
on that date.
SECTION 3.06 Notes Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, plus accrued and unpaid interest thereon to
the Redemption Date, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest thereon)
such Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price, plus accrued and unpaid interest thereon to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, registered as such on the relevant Regular Record Dates according
to the terms and provisions of Section 2.12 hereof.
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If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at the rate
borne by such Note.
SECTION 3.07 Notes Redeemed in Part
Any Note which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 4.02 hereof (with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Registrar or the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and a new Note
in principal amount equal to the unredeemed portion will be issued in the name
of the Holder thereof upon cancellation of the original Note. On and after the
Redemption Date, unless the Company defaults in payment of the Redemption Price
and accrued interest thereon, interest shall cease to accrue on Notes or
portions thereof called for redemption.
SECTION 3.08 Optional Redemption
Except as described below, the Notes are not redeemable at the
Company's option prior to November __, 2002. Thereafter, the Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon to the applicable Redemption Date, if
redeemed during the twelve-month period beginning on November __ of the years
indicated below:
YEAR PERCENTAGE
- ---- ----------
2002............................................................. . %
--------
2003............................................................. . %
--------
2004............................................................. . %
--------
2005 and thereafter.............................................. 100.0000%
Notwithstanding the foregoing, on or prior to November __,
2000, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of the Notes originally issued at a redemption price
of _____% of the principal amount thereof, plus accrued and unpaid interest
thereon, to the Redemption Date, with the net cash proceeds of one or more
Public Equity Offerings; provided that at least 65% of the aggregate principal
amount of the Notes originally issued remain outstanding immediately after the
occurrence of such redemption; and provided, further, that such redemption shall
occur within 60 days of the date of the closing of any such Public Equity
Offering.
In addition, at any time prior to November __, 2002, the
Company may, at its option, redeem the Notes, in whole or in part, at a
redemption price equal to 100% of the principal amount plus the applicable
Make-Whole Premium, plus accrued and unpaid interest thereon to the Redemption
Date.
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SECTION 3.09 Mandatory Redemption
Except as set forth under Sections 3.10, 4.16 and 4.17 hereof,
the Company shall not be required to make any mandatory redemption or sinking
fund payments with respect to the Notes.
SECTION 3.10 Offer to Purchase by Application of Excess Proceeds
In the event that, pursuant to Section 4.16 hereof, the
Company shall be required to make an offer to all Holders of Notes to purchase
Notes (an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for at least 30 and not
more than 40 days, except to the extent that a longer period is required by
applicable law (the "Offer Period"). On a date within five Business Days after
the termination of the Offer Period (the "Purchase Date"), the Company shall
purchase the principal amount of Notes required to be purchased pursuant to
Section 4.16 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Notes tendered in response to the Asset Sale Offer.
The Company shall comply with any tender offer rules under the
Exchange Act which may then be applicable, including Rule 14e-1, in connection
with any offer required to be made by the Company to repurchase the Notes as a
result of an Asset Sale Offer.
If the Purchase Date is on or after a Regular Record Date and
on or before the related Interest Payment Date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such Regular Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to each of the Holders, with a copy to
the Trustee. The notice shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which shall govern
the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.10 and Section 4.16 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price, separately stating
the amount of any accrued and unpaid interest, and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
remain outstanding and continue to accrue interest;
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(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest on the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Company,
a depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice not later than the last Business Day of
the Offer Period;
(f) that Holders shall be entitled to withdraw their tendered
Notes and their election to require the Company to purchase such Notes,
provided that the Company, the depositary or the Paying Agent, as the
case may be, receives, not later than the close of business on the last
Business Day of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes the Holder tendered for purchase, and a
statement that such Holder is withdrawing his tendered Notes and his
election to have such Notes purchased;
(g) that, if the aggregate principal amount of Notes properly
tendered by Holders exceeds the Offer Amount, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Trustee so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(h) that Holders whose Notes are being purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before noon (New York City time) on each Purchase Date,
the Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount (or, if less than the Offer
Amount has been properly tendered, such lesser amount as shall equal the
principal amount of Notes properly tendered), together with accrued and unpaid
interest thereon to the Purchase Date, to be held for payment in accordance with
the terms of this Section 3.10. On the Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, (ii) deliver or cause the Paying Agent or depositary, as the
case may be, to deliver to the Trustee Notes so accepted and (iii) deliver to
the Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 3.10. The Company, the depositary or the Paying Agent, as the case may
be, shall promptly (but in any case not later than three Business Days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, plus accrued and unpaid interest
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thereon to the Purchase Date, and the Company shall promptly issue a new Note,
and the Trustee, upon written request from the Company, shall authenticate and
mail or deliver such new Note to such Holder, equal in principal amount to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall send a notice to each Holder stating the results of the Asset Sale Offer
on the Purchase Date.
ARTICLE 4.
COVENANTS
SECTION 4.01 Payment of Notes
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and in this Indenture. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent holds as
of noon (New York City time) on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at the rate of the then applicable
interest rate on the Notes to the extent lawful; the Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace period)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 4.02 Maintenance of Office or Agency
The Company will maintain, in The City of New York, an office
or agency (which may be an office of the Trustee or Registrar) where Notes may
be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such 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 Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Notes may
be presented or surrendered for any or all such purposes, and may from time to
time rescind such
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designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in The City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 4.03 Money for Security Payments to be Held in Trust
Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date of the principal of, premium, if
any, or interest on any Notes, deposit with a Paying Agent a sum in same day
funds (or New York Clearing House funds if such deposit is made prior to the
date on which such deposit is required to be made) sufficient to pay the
principal, premium, if any, or interest so becoming due (or at the option of the
Company, payment of interest may be made by check mailed to the Holders of Notes
at their respective addresses set forth in the register of Holders of Notes;
provided that all payments on the Global Note and all payments of interest on
the Definitive Notes, the holders of which have given wire transfer instructions
to the Company or the Paying Agent at least ten Business Days prior to the
applicable payment date, shall be made by wire transfer in same day funds), such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any failure so to
act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section
4.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Notes in
trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Notes) in the making of
any payment of principal, premium, if any, or interest;
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying
Agent; and
(d) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the
duties, rights and obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which
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such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense of the Company cause
notice to be promptly sent to each Holder that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 4.04 Reports
(a) So long as any of the Notes remain outstanding, the
Company shall cause copies of all quarterly and annual reports and of the
information, documents and other reports which the Company is required to file
with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act ("SEC
Reports") to be delivered to the Trustee and mailed to the Holders of Notes at
their addresses appearing in the register of Notes maintained by the Registrar,
in each case, within 5 days of filing with the SEC. If the Company is not
subject to the requirements of Section 13(a) or 15(d) of the Exchange Act or
shall cease to be required by the SEC to file SEC Reports, the Company shall
nevertheless continue to cause SEC Reports, comparable to those which it would
be required to file pursuant to Section 13(a) or 15(d) of the Exchange Act if
it were subject to the requirements of either such Section, to be so filed with
the SEC for public availability (unless the SEC will not accept such a filing)
and with the Trustee and mailed to the Holders of Notes, in each case, within
the same time periods as would have applied (including under the preceding
sentence) had the Company been subject to the requirements of Section 13(a) or
15(d) of the Exchange Act. The Company shall make all such information
available to prospective investors who request it in writing. The Company shall
also comply with the provisions of TIA Section 314(a).
(b) If the Company instructs the Trustee to distribute any of
the documents described in clause (a) above to the Holders of Notes, the Company
shall provide the Trustee with a sufficient number of copies of all SEC Reports
that the Company may be required to deliver to the Holders of Notes under this
Section 4.04. Any such distribution by the Trustee pursuant to this clause (b)
shall be at the expense of the Company.
SECTION 4.05 Compliance Certificate
(a) The Company and each Guarantor shall deliver to the
Trustee, within 90 days after the end of each fiscal year ending after the date
hereof, an Officers' Certificate
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stating whether, to such officers' knowledge, the Company and such Guarantor is
in compliance with all covenants and conditions to be complied with by it under
this Indenture (including, with respect to any Restricted Payments made during
such year, the basis upon which the calculations required by Section 4.10 hereof
were computed, which calculations may be based on the Company's latest financial
statements), and further stating, as to each Officer signing such certificate,
that to the best of his or her knowledge each entity is not in default in the
performance or observance of any terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall exist, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest
on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto. For purposes of this Section 4.05, such compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
annual reports delivered to the Trustee pursuant to Section 4.04 above shall be
accompanied by a written statement of the Company's independent public
accountants (which shall be a firm of established national reputation
satisfactory to the Trustee) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
which would lead them to believe that either the Company or any of its
Subsidiaries has violated any provisions of Article 4 or 5 of this Indenture or,
if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Company will, so long as any of the Notes are
outstanding, within five Business Days, upon becoming aware of (i) any Default
or Event of Default or (ii) any default under any mortgage, document, indenture,
instrument or agreement relating to Indebtedness in excess of $5.0 million of
the Company or any Guarantor, deliver to the Trustee an Officers' Certificate
specifying such Default, Event of Default or other default and what action the
Company is taking or proposes to take with respect thereto.
SECTION 4.06 Taxes
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon it or any Subsidiary
or upon the income, profits or property of the Company or any of its
Subsidiaries and (b) all material lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a Lien upon the property of the
Company or any of its Subsidiaries that could produce a material adverse effect
on the consolidated financial condition of the Company; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in
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good faith by appropriate proceedings and in respect of which appropriate
reserves (in the good faith judgment of management of the Company) are being
maintained in accordance with GAAP.
SECTION 4.07 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.08 Corporate Existence; Maintenance
of Properties and Insurance
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) its (and its Restricted
Subsidiaries') rights (charter and statutory), licenses and franchises;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Restricted Subsidiaries, if the Board of Directors or management of
the Company shall determine in good faith that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of Notes.
With such exceptions, if any, as are not material in the
aggregate and are not adverse in any material respect to the Holders of Notes,
the Company shall, and shall cause each of its Subsidiaries to, maintain its
properties in good working order and condition (subject to ordinary wear and
tear) and make all reasonably necessary repairs, renewals, replacements,
additions and improvements required for it to actively conduct and carry on its
business.
The Company shall maintain insurance against loss or damage of
the kinds that, in the good faith judgment of the Company, are adequate and
appropriate for the conduct of the business of the Company and its Subsidiaries
in a prudent manner, with reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Company, for companies similarly situated in the
industry.
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SECTION 4.09 Limitation on the Incurrence of Indebtedness and
Issuance of Preferred Stock
The Company shall not, and shall not permit any of its
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 Indebtedness (including Acquired
Debt) and the Company shall not issue any Disqualified Stock and shall not
permit any of its Subsidiaries to issue any shares of preferred stock (other
than to the Company or a Wholly Owned Restricted Subsidiary of the Company);
provided, however, that the Company and the Guarantors may incur Indebtedness
(including Acquired Debt but excluding Hedging Obligations) or issue shares of
Disqualified Stock if:
(i) the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2.25 to 1 if such Indebtedness is
incurred or such Disqualified Stock is issued on or prior to November
__, 1999 or 2.50 to 1 if such Indebtedness is incurred or such
Disqualified Stock is issued thereafter, determined on a pro forma
basis in accordance with Article 11 of Regulation S-X under the
Securities Act or any successor provision, as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter
period; and
(ii) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro
forma basis to, such incurrence or issuance.
The provisions of the first paragraph of this Section 4.09
will not apply to the incurrence of any of the following items of Indebtedness
or issuances of preferred stock or Disqualified Stock (collectively, "Permitted
Debt"):
(i) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness arising under or in connection with the
Amended Credit Facility; provided that the aggregate principal amount
of all Indebtedness (with letters of credit being deemed for all
purposes of this Indenture to have a principal amount equal to the
maximum potential liability of the Company and its Restricted
Subsidiaries in respect thereof) outstanding under the Amended Credit
Facility after giving effect to such incurrence, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (i), does not
exceed an amount equal to the greater of $100.0 million or $10.0
million plus the Borrowing Base, in each case less the aggregate amount
of all Indebtedness permanently repaid with the Net Proceeds of any
Asset Sale;
(ii) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness;
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(iii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case
incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or
equipment used in the business of the Company or such Restricted
Subsidiary, in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
other Indebtedness incurred pursuant to this clause (iii), not to
exceed $5.0 million at any time outstanding;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than Hedging Obligations and other than
Indebtedness permitted to be incurred pursuant to clause (v) or clause
(x) of this paragraph) that was permitted by this Indenture to be
incurred;
(v) the incurrence by the Company or any of its Wholly Owned
Restricted Subsidiaries of intercompany Indebtedness between or among
the Company and any of its Wholly Owned Restricted Subsidiaries;
provided, however, that (A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Wholly Owned Restricted Subsidiary
of the Company and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Wholly
Owned Restricted Subsidiary of the Company (other than any pledge of
such Indebtedness to the lenders under the Amended Credit Facility)
shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case
may be;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose
of hedging against fluctuations in currency values or for the purpose
of fixing or hedging interest rate risk with respect to any floating
rate Indebtedness of the Company or any of its Restricted Subsidiaries
that is permitted by the terms of this Indenture to be outstanding,
provided that the notional principal amount of any Hedging Obligations
does not significantly exceed the principal amount of Indebtedness to
which such agreement relates;
(vii) the Guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Wholly Owned
Restricted Subsidiary of the Company that was permitted to be incurred
by another provision of this Section 4.09;
(viii) the issuance by the Company's Unrestricted Subsidiaries
of preferred stock or the incurrence by the Company's Unrestricted
Subsidiaries of Non-Recourse Debt, provided, however, that if any such
Indebtedness ceases to be Non-Recourse Debt of an Unrestricted
Subsidiary, such event shall be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of the Company;
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(ix) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness represented by the Notes and the
Subsidiary Guarantees; and
(x) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness (other than Hedging
Obligations) or the issuance by the Company of Disqualified Stock;
provided that the aggregate principal amount of outstanding
Indebtedness, together with the aggregate liquidation preference of
outstanding Disqualified Stock, issued or incurred pursuant to this
clause (x) does not at any time exceed $10.0 million.
SECTION 4.10 Limitation on Restricted Payments
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of the Company's
Equity Interests (including, without limitation, any payment in connection with
any merger or consolidation involving the Company) or to the direct or indirect
holders of the Company's Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or dividends or distributions payable to any Wholly Owned
Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value (including, without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests of the
Company or any Affiliate of the Company (other than any such Equity Interests
owned by the Company or any Wholly Owned Restricted Subsidiary of the Company,
any Equity Interests then being issued by the Company or a Wholly Owned
Restricted Subsidiary of the Company or any Investment in a Person that, after
giving effect to such Investment, is a Wholly Owned Restricted Subsidiary of the
Company); (iii) make any payment on or with respect to, or purchase, redeem,
repay, defease or otherwise acquire or retire for value, any Indebtedness that
is subordinated in right of payment to the Notes (other than regularly scheduled
payments of interest); or (iv) make any Restricted Investment (all such payments
and other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company 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 Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (ii), (iii), (iv), (vi) and
(vii) of the next succeeding paragraph), is less than the sum of (i)
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50% of the Consolidated Net Income of the Company for the period (taken
as one accounting period) from the beginning of the first fiscal
quarter commencing after the date of this Indenture to the end of the
Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit), plus (ii) 100% of the aggregate
net cash proceeds received by the Company from the issue or sale since
the date of this Indenture of Equity Interests of the Company (other
than Disqualified Stock) or of Disqualified Stock or debt securities of
the Company 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 Company and other than
Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after the date of this Indenture is
sold for cash or otherwise liquidated or repaid for cash, the lesser of
(A) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) (but only to the
extent not included in subclause (i) of this clause (c)), and (B) the
initial amount of such Restricted Investment, plus (iv) $5.0 million.
The foregoing provisions shall not prohibit (i) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, other Equity Interests of
the Company (other than any Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause (c)
(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or
other acquisition of subordinated Indebtedness with the net cash proceeds from
an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of
scheduled dividends on any Disqualified Stock issued after the date hereof in
compliance with the provisions of this Indenture; (v) payments made with respect
to the repurchase, redemption or other acquisition or retirement for value of
any Equity Interests of the Company or any Subsidiary of the Company held by any
member of the Company's (or any of its Restricted Subsidiaries') management
pursuant to any management equity subscription agreement or stock option
agreement in effect as of the date of this Indenture (provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $1.0 million in any twelve-month period); (vi)
the purchase, redemption, repayment, acquisition or retirement of the Company's
11.21% Senior Subordinated Notes due 1999 and the Company's 8% Convertible
Subordinated Notes due 2002 with the proceeds of the offering of the Notes as
described in the Prospectus under the caption "Use of Proceeds"; (vii) the
purchase, redemption, repayment, acquisition or retirement for value of the
Company's 7% Convertible Subordinated Notes due 2002 at any time during the six
month period ending June 1, 2002; and (viii) the payment of regular quarterly
dividends on shares of common stock of the Company in an aggregate amount not to
exceed $.10 per share per annum (as equitably adjusted by resolution of the
Board of Directors of the Company for stock splits, stock
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dividends and similar events after the date of this Indenture); provided,
however, that at the time of, and after giving effect to, any Restricted Payment
permitted under clauses (i) through (v), (vii) and (viii) no Default or Event of
Default shall have occurred and be continuing.
The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would
not cause a Default. For purposes of making such determination, all outstanding
Investments by the Company 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 the first paragraph of this Section 4.10. All such
outstanding Investments will be deemed to constitute Investments in an amount
equal to the greater of (x) the net book value of such Investments at the time
of such designation and (y) 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.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment, to be
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors of the Company set forth in an Officers' Certificate. Not later than
the date of making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section 4.10 were computed, together with a copy of any fairness opinion
required by this Indenture.
SECTION 4.11 Limitation on Liens
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien securing Indebtedness or trade payables on any asset
now owned or hereafter acquired, or on any income or profits therefrom or assign
or convey any right to receive income therefrom, except Permitted Liens.
SECTION 4.12 Limitation on Transactions with Affiliates
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Subsidiary than those that would have been obtained
in a comparable transaction by
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the Company or such Subsidiary with an unrelated Person and (ii) the Company
delivers to the Trustee (a) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate payments or consideration
in excess of $1.0 million, a resolution of the Board of Directors of the Company
set forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and that such Affiliate Transaction has been
approved by a majority of the independent members of the Board of Directors of
the Company and (b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate payments or consideration in
excess of $5.0 million, an opinion as to the fairness to the Company or such
Subsidiary of such Affiliate Transaction from a financial point of view issued
by an investment banking firm of national standing; provided, however, that (i)
any employment agreement, compensation agreement or employee benefit arrangement
paid or made available to officers and employees of the Company or its
Subsidiaries for services actually rendered entered into by the Company or any
of its Subsidiaries in the ordinary course of business and consistent with the
past practice of the Company or such Subsidiary (including reimbursement or
advancement of reasonable out-of-pocket expenses and directors' and officers'
liability insurance), (ii) compensation (in the form of reasonable director's
fees and reimbursement or advancement of reasonable out-of-pocket expenses) paid
to any director of the Company or its Subsidiaries for services rendered in such
person's capacity as a director and indemnification and directors' and officers'
liability insurance in connection therewith, (iii) transactions between or among
the Company and its Wholly Owned Restricted Subsidiaries, and (iv) Restricted
Payments that are permitted by Section 4.10 hereof, in each case, shall not be
deemed Affiliate Transactions.
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Restricted Subsidiary to (i)(a) pay dividends or make any
other distributions to the Company 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 or other obligations
owed to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness as in effect on the date of this Indenture,
(b) the Amended Credit Facility as in effect as of 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, replacements or refinancings are no more restrictive as a whole with
respect to such dividend and other payment restrictions than those contained in
the Amended Credit Facility as in effect on the date of this Indenture, (c) this
Indenture and the Notes, (d) applicable law, (e) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such
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Indebtedness was incurred 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 (including any Subsidiary of the Person), so
acquired, provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred, (f) by reason of
customary non-assignment and net worth provisions in leases or other agreements
entered into in the ordinary course of business and consistent with past
practices, (g) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in clause
(iii) above on the property so acquired, (h) Permitted Refinancing Indebtedness,
provided that the restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive than those contained
in the agreements governing the Indebtedness being refinanced, (i) customary
restrictions in Capital Lease Obligations, security agreements or mortgages
securing Indebtedness of the Company or a Restricted Subsidiary to the extent
such restrictions restrict the transfer of the property subject to such Capital
Lease Obligations, security agreements or mortgages, (j) customary restrictions
with respect to an agreement that has been entered into for the sale or
disposition of assets or Capital Stock held by the Company or any Restricted
Subsidiary, and (k) customary restrictions contained in any agreements or
documentation governing Indebtedness incurred pursuant to clause (x) of Section
4.09 hereof.
SECTION 4.14 Limitation on Issuances and Sales of Capital Stock of Wholly Owned
Restricted Subsidiaries
The Company (i) shall not, and shall not permit any Wholly
Owned Restricted Subsidiary of the Company to, issue, transfer, convey, sell,
lease or otherwise dispose of any Equity Interests or other ownership interests
(including convertible debt securities) of any Wholly Owned Restricted
Subsidiary of the Company to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company), unless (a) such issuance, transfer,
conveyance, sale, lease or other disposition is of all the Equity Interests and
other ownership interests of such Wholly Owned Restricted Subsidiary and (b) the
Net Proceeds from such transfer, conveyance, sale, lease or other disposition
are applied in accordance with Section 4.16 hereof and (ii) shall not permit any
Wholly Owned Restricted Subsidiary of the Company to issue any of its Equity
Interests or other ownership interests (other than, if necessary, shares of its
Capital Stock constituting directors' qualifying shares) to any Person other
than to the Company or a Wholly Owned Restricted Subsidiary of the Company.
SECTION 4.15 Limitation on Layering Debt
(a) The Company shall not, directly or indirectly, incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness
that is by its terms subordinate or junior in right of payment to any Senior
Debt of the Company and senior in any respect in right of payment to the Notes.
(b) The Company shall not permit any Guarantor, directly or
indirectly, to incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is by its terms subordinate or junior in right
of payment to any Senior Debt of such
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Guarantor and senior in any respect in right of payment to the Subsidiary
Guarantee of such Guarantor.
SECTION 4.16 Asset Sales
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale
unless (i) the Company (or such 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 Company
and as 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 Company or such
Restricted Subsidiary, as the case may be, from such Asset Sale is in the form
of cash; provided that the amount of (x) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet), of the
Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any Guarantee
thereof) that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that expressly releases the Company or such
Restricted Subsidiary from further liability and (y) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary from
such transferee that are immediately converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received) shall be deemed to be
cash for purposes of this provision.
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to
permanently reduce any Senior Debt of the Company (and to correspondingly reduce
commitments with respect thereto in the case of revolving borrowings), or (b) to
the acquisition of a controlling interest in another business, the making of a
capital expenditure or the acquisition of other long-term assets, in each case,
in the same line of business as the Company was engaged in on the date of this
Indenture. Pending the final application of any such Net Proceeds, the Company
may 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 paragraph will be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0
million the Company shall make an Asset Sale Offer to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest thereon, to the date of purchase, in
accordance with the procedures set forth in Section 3.10 of this Indenture. To
the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal amount of
Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero. The Asset Sale Offer must be commenced within 30 days following
the date on which the aggregate amount of Excess Proceeds exceeds $5.0 million
and remain open for at least 30 and not more than 40 days (unless otherwise
required by applicable law).
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The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer.
SECTION 4.17 Offer to Repurchase Upon Change of Control
(a) Upon the occurrence of a Change of Control, the Company
shall make an offer to purchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes pursuant to the offer described below
(the "Change of Control Offer") at an offer price in cash (the "Change of
Control Payment") equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon to the date of purchase (the "Change of
Control Payment Date").
(b) Notice of a Change of Control Offer shall be mailed by or
on behalf of the Company, with a copy to the Trustee or, at the option of the
Company and at the expense of the Company, by the Trustee within 30 days
following a Change of Control to each Holder of Notes, with the following
statements and/or information:
(1) a Change of Control Offer is being made pursuant to
this Section 4.17 and that all Notes properly
tendered pursuant to such Change of Control Offer
will be accepted for payment;
(2) the purchase price, the expiration date of the Change
of Control Offer (the "Expiration Date"), which shall
be no earlier than 30 days nor later than 40 days
from the date such notice is mailed (except as may be
otherwise required by applicable law) and the Change
of Control Payment Date, which shall be no later than
the third Business Day following the Expiration Date;
(3) any Note not properly tendered will remain
outstanding and continue to accrue interest;
(4) unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer will
cease to accrue interest on the Change of Control
Payment Date;
(5) Holders electing to have a Note purchased pursuant to
any Change of Control Offer shall be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company,
or a Paying Agent and at the address specified in the
notice prior to the expiration of the Change of
Control Offer;
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(6) Holders shall be entitled to withdraw their tendered
Notes and their election to require the Company to
purchase such Notes, provided that the Company, the
depositary or Paying Agent, as the case may be,
receives, not later than the close of business on the
Expiration Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the
Holder, the principal amount of the Notes tendered
for purchase, and a statement that such Holder is
withdrawing his tendered Notes and his election to
have such Notes purchased; and
(7) that Holders whose Notes are being purchased only in
part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer),
which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof.
(c) The Company shall comply with any tender offer rules under
the Exchange Act which may then be applicable, including Rule 14e-1, in
connection with the repurchase of the Notes pursuant to a Change of Control
Offer.
(d) On the Change of Control Payment Date, the Company shall,
to the extent lawful, (1) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the aggregate Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3) deliver, or cause
to be delivered, to the Trustee for cancellation the Notes so accepted together
with an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof properly tendered to the Company. The Paying Agent shall
promptly mail or deliver to each Holder of Notes so tendered the Change of
Control Payment for such Notes, and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered, if any;
provided that each such new Note will be in a principal amount of $1,000 or an
integral multiple thereof. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(e) Notwithstanding the foregoing, if the Change of Control
Payment Date is on or after a Regular Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest shall be paid to the
Person in whose name a Note is registered at the close of business on such
Regular Record Date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Change of Control Offer.
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(f) Notwithstanding the foregoing, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
(g) The Change of Control provisions described in this Section
4.17 will be applicable whether or not any other provisions of this Indenture
are applicable.
SECTION 4.18 Additional Subsidiary Guarantees
If the Company or any of its Subsidiaries shall acquire or
create another Subsidiary after the date hereof, then the Company shall cause
such newly acquired or created Subsidiary (at any time such Subsidiary has gross
assets or stockholders' equity in excess of $50,000) to (i) become (by a
supplemental indenture, executed and delivered to the Trustee in form
satisfactory to the Trustee) a Guarantor and (ii) deliver to the Trustee, an
Opinion of Counsel reasonably satisfactory to the Trustee that such supplemental
indenture has been duly executed and delivered; provided, however, that all
Subsidiaries that have been properly designated as Unrestricted Subsidiaries in
accordance with this Indenture shall not be subject to the preceding clause for
so long as they continue to constitute Unrestricted Subsidiaries. In addition,
(i) each of JBAK Canton Realty, Inc., a Massachusetts corporation ("JBAK
Realty") and JBAK Holding, Inc., a Massachusetts corporation ("JBAK Holding"),
will be required to become a Guarantor at such time, if any, as it is not
prohibited from doing so under the terms of the Existing Indebtedness listed as
item __ in Schedule I hereto or of any Permitted Refinancing Indebtedness, the
net proceeds of which are used to refund, refinance or replace such Existing
Indebtedness, (ii) JBAK Realty will be required to become a Guarantor at such
time, if any, as it (A) engages in any business activity other than the
ownership, operation and maintenance of the Canton Property and activities
incidental thereto, (B) acquires or owns any material assets other than the
Canton Property and such incidental personal property as may be necessary for
the operation of the Canton Property or (C) incurs any Indebtedness other than
the Indebtedness referred to in the preceding clause (i) and (iii) JBAK Holding
will be required to become a Guarantor at such time, if any, as it (A) engages
in any business or activity other than the ownership of the stock of JBAK Realty
and activities incidental thereto, including the management of the Canton
Property, (B) acquires or owns any material asset other than the stock of JBAK
Realty, or (C) incurs any Indebtedness.
SECTION 4.19 Payments for Consent
Neither the Company 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 Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of Notes that consent, waive or agree to amend
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in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 Limitation on Merger, Consolidation or Sale of Assets
(a) The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another
corporation, entity or other Person, unless (i) the Company is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; (ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the Notes and this
Indenture 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) except in the case of a merger of
the Company with or into a Wholly Owned Subsidiary of the Company, the Company
or the Person formed by or surviving any such consolidation or merger (if other
than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (A) shall have Consolidated
Net Worth immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the transaction and
(B) shall, 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
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of Section 4.09 hereof.
(b) The Company shall deliver to the Trustee prior to the
consummation of any proposed transaction subject to the foregoing clause (a) an
Officers' Certificate and an Opinion of Counsel, each stating that the proposed
transaction and such supplemental indenture comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such Officers' Certificate
and Opinion of Counsel.
SECTION 5.02 Successor Corporation Substituted
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer,
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lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default
Each of the following constitutes an Event of Default:
(1) default for 30 days or more in the payment when due of
interest on the Notes (whether or not prohibited by Article 10 hereof);
or
(2) default in payment when due (whether payable at maturity,
upon redemption or otherwise) of the principal of or premium, if any,
on the Notes (whether or not prohibited by Article 10 hereof); or
(3) failure by the Company to comply with Section 3.10, 4.16,
4.17 or 5.01 hereof; or
(4) failure by the Company or any Subsidiary of the Company
for 30 days after written notice from the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes to the
Company to comply with any of its other agreements in this Indenture or
the Notes other than those referred to in clauses (1), (2) and (3)
above; or
(5) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date of
this Indenture, which default (i) is caused by a failure to pay
principal of or premium, if any, or interest on such Indebtedness prior
to the expiration of the grace period provided in such Indebtedness on
the date of such default (a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $5.0 million or more; or
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(6) failure by the Company or any of its Restricted
Subsidiaries to pay final and non-appealable judgments aggregating in
excess of $5.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days after their entry; or
(7) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable
or invalid and such judgment has become final or non-appealable or
shall cease for any other reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under its Subsidiary Guarantee; or
(8) the Company, any Restricted Subsidiary that is a
Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary, pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing its inability generally to pay its
debts as the same become due; or
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary in an involuntary case or
proceeding,
(B) appoints a Custodian of the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary or for all or a substantial part of
the property of the Company, any Restricted Subsidiary that is
a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary, or
(C) orders the liquidation of the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary,
and the order or decree contemplated in clause (A), (B) or (C) of this clause
(9) remains unstayed and in effect for 60 consecutive days.
SECTION 6.02 Acceleration of Maturity
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If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes and all other Obligations thereunder to be due and
payable immediately by notice in writing to the Company and the Trustee. Upon a
declaration of acceleration, the Notes and all other Obligations thereunder
shall become immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of
Default specified in clause (8) or (9) of Section 6.01 hereof occurring with
respect to the Company, any Significant Subsidiary that is a Restricted
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, all then outstanding Notes and all other
Obligations thereunder shall become immediately due and payable without further
action or notice.
If any Event of Default occurs by reason of any willful action
(or inaction) taken (or not taken) by or on behalf of the Company or any
Guarantor with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.08 hereof, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes.
SECTION 6.03 Other Remedies
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy (under this Indenture or otherwise) to collect
the payment of principal of, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults
The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Note held by a
non-consenting Holder; provided, however, that the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may rescind
an acceleration and its consequences, including any related payment default that
resulted from such acceleration. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every
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purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05 Control by Majority
The Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability. The Trustee may take any other action
which it deems proper and which is not inconsistent with any such direction.
SECTION 6.06 Limitation on Suits
No Holder of a Note will have any right to institute any
proceeding with respect to this Indenture or for any remedy hereunder, unless
(i) such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes, (ii) the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding shall have
made written request to the Trustee to institute such proceeding and, if
requested by the Trustee, provided an indemnity satisfactory to the Trustee,
with respect to such proceeding, (iii) the Trustee shall not have received from
the Holders of a majority in aggregate principal amount of the Notes then
outstanding a direction inconsistent with such request and (iv) the Trustee
shall have failed to institute such proceeding within 30 days after such request
and, if requested, the provision of an indemnity satisfactory to the Trustee.
Notwithstanding anything to the contrary contained in this
Section 6.06, Holders of a majority in principal amount of the outstanding Notes
may institute any proceeding with respect to this Indenture or the Notes or any
remedy thereunder; provided that, upon institution of any proceeding or
exercise of any remedy, such Holders provide the Trustee with prompt written
notice thereof.
A Holder of Notes may not use this Indenture to prejudice the
rights of another Holder of Notes or to obtain a preference or priority over
another Holder of Notes.
SECTION 6.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, if any,
or interest on any Note, on or
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after the respective due dates expressed in such Note, any Redemption Date, any
Change of Control Payment Date or any Purchase Date, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee
If an Event of Default specified in Section 6.01(1) or (2)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company or any
Guarantor for the whole amount of principal of, premium, if any, and interest
owing on the Notes and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 7.07 hereof.
SECTION 6.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder of Notes to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders of Notes, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that
the Holders of Notes may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of Notes any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of Notes in any such proceeding.
SECTION 6.10 Priorities
If the Trustee collects any money pursuant to this Article 6,
it shall first pay the Trustee, its agents and attorneys for amounts due under
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Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection and, thereafter, the Trustee shall pay out the remainder
of the money, subject to Article 10 and Section 12.04 hereof, in the
following order:
First: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively;
Second: without duplication, to the Holders for any other
Obligations owing to the Holders under this Indenture and the Notes;
and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes 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 a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof, or a suit by a Holder or Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01 Duties of Trustee
(1) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
its own affairs.
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(2) Except during the continuance of an Event of Default:
(A) the duties of the Trustee shall be determined solely
by the TIA or the express provisions of this Indenture and the Trustee
need perform, and be liable for (as set forth herein), only those duties
that are specifically set forth in the TIA or this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, provided that the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(A) this paragraph does not limit the effect of clause (2)
of this Section 7.01;
(B) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(C) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(4) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
clauses (1), (2) and (3) of this Section 7.01.
(5) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture unless the Holders shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(7) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or documents, but the Trustee, in its discretion may
make such further inquiry or investigation into such facts or
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matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company or any Subsidiary of the Company, personally
or by agent or attorney.
SECTION 7.02 Rights of Trustee
(1) The Trustee may conclusively rely and shall be fully
protected in relying upon any resolution, document, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond or other 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.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(3) The Trustee may act through its attorneys, agents,
custodians, and nominees and shall not be responsible for the misconduct or
negligence of any agent, custodian and nominee appointed with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any Guarantor shall
be sufficient if signed by an Officer of the Company or such Guarantor. A
permissive right granted to the Trustee hereunder shall not be deemed an
obligation to act.
(6) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture
including, without limitation, the provisions of Section 6.05 hereof, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities that
might be incurred by it in compliance with such request, order or direction.
(7) The Trustee shall not be charged with knowledge of any
Default or Event of Default unless either (i) a Responsible Officer of the
Trustee shall have actual knowledge of such Default or Event of Default or (ii)
written notice of such Default or Event of Default shall have been given to the
Trustee by the Company or any Holder.
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(8) In no event shall the Trustee be liable for the selection
of investments or for investment losses incurred thereon. The Trustee shall have
no liability in respect of losses incurred as a result of the liquidation of any
such investment prior to its stated maturity or the failure of the party
directing such investment to provide timely written investment direction;
provided in each such case that the Trustee shall have acted strictly in
accordance with written directions received from the instructing party. The
Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of such written investment direction.
(9) In the event that the Trustee is also acting as Paying
Agent, transfer agent, or Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article 7 shall also be afforded to
such Paying Agent, transfer agent, or Registrar.
SECTION 7.03 Individual Rights of Trustee
The Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. However, the Trustee is also subject to Sections 7.10 and
7.11 hereof.
SECTION 7.04 Trustee's Disclaimer
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the direction of the Company under any
provision of this Indenture, it 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 or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05 Notice of Defaults
If a Default or Event of Default occurs and is continuing and
if it is known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
of principal of, premium, if any, or interest on any Note pursuant to Section
6.01(1) or (2) hereof, the Trustee may withhold the notice if it in good faith
determines that withholding the notice is in the interests of Holders of Notes.
SECTION 7.06 Reports by Trustee to Holders of Notes
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of Notes a brief report dated
as of such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
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SECTION 7.07 Compensation and Indemnity
The Company shall pay to the Trustee, from time to time as may
be agreed upon between them, reasonable compensation for its acceptance of this
Indenture and services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services in accordance with any provision of this Indenture
(including, without limitation, the reasonable compensation, expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ (A) in connection with the preparation, execution and delivery of
this Indenture, any waiver or consent hereunder, any modification or termination
hereof, or any Event of Default or alleged Event of Default; (B) if an Event of
Default occurs, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings relating thereto; (C)
in connection with the administration of the Trustee's rights pursuant hereto;
or (D) in connection with any removal of the Trustee pursuant to Section 7.08
hereof), except such disbursements, advances and expenses as may be attributable
to its negligence or bad faith.
The Company shall indemnify the Trustee and its officers,
directors, employees, and agents against any and all losses, liabilities,
obligations, damages, penalties, judgments, actions, suits, proceedings,
reasonable costs and expenses (including reasonable fees and disbursements of
counsel) of any kind whatsoever which may be incurred by the Trustee in
connection with any investigative, administrative or judicial proceeding
(whether or not such indemnified party is designated a party to such proceeding)
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its duties or powers hereunder; provided, however, that the Company need not
reimburse any expense or indemnify against any loss, obligation, damage,
penalty, judgment, action, suit, proceeding, reasonable cost or expense
(including reasonable fees and disbursements of counsel) of any kind whatsoever
which may be incurred by the Trustee in connection with any investigative,
administrative or judicial proceeding (whether or not such indemnified party is
designated a party to such proceeding) in which it is determined that the
Trustee acted with negligence or bad faith. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.07 shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture.
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To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or 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 Company 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 then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee, after written request by any Holder of Notes
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Note may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
The Company shall give or cause to be given notice of each
resignation and each removal of the Trustee to all Holders in the manner
provided herein. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided that all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business (including
the trust created by this Indenture) to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state or territory thereof or of the District of Columbia that
is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal, state, territorial or District
of Columbia authorities and that has, or is a wholly owned subsidiary of a bank
holding company that has, a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10 it shall resign immediately
in the manner and with the effect specified in this Article 7.
This Indenture shall always have a Trustee who satisfies the
requirements of the TIA, including TIA Sections 310(a)(1), (2) and (5). The
Trustee is subject to TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company
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The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at the option of the Board of Directors of
the Company, evidenced by a Board Resolution set forth in an Officers'
Certificate, at any time, with respect to the Notes, elect to have either
Section 8.02 or 8.03 hereof be applied to all Notes and Subsidiary Guarantees
then outstanding upon compliance with the conditions set forth in this Article
8.
SECTION 8.02 Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company and each Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their respective obligations with respect
to all Notes and Subsidiary Guarantees then outstanding on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company and any Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
Notes and any Subsidiary Guarantees then outstanding, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Notes and this Indenture (and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments prepared by the Company acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Notes then outstanding to
receive solely from the trust fund described in Section 8.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due, or on
the Redemption Date, as the case may be, (b) the Company's obligations with
respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 4.02
and 4.03 hereof, (c) the rights, powers, trusts, duties, indemnities and
immunities of the Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof with respect to the
Notes.
SECTION 8.03 Covenant Defeasance
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Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and each Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from their obligations under the covenants contained in Sections
4.04, 4.06, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 , 4.15, 4.16, 4.17, 4.18 and 4.19
and Article 5 hereof with respect to the outstanding Notes and the Subsidiary
Guarantees on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes and the Subsidiary
Guarantees shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed to be "outstanding" for all other purposes hereunder (it
being understood that such Notes and Subsidiary Guarantees shall not be deemed
outstanding for financial accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Subsidiary
Guarantees, the Company and any Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document, and such
omission to comply shall not constitute a Default or Event of Default under
Section 6.01(3) or (4) hereof, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, Sections 6.01(3) through 6.01(7) hereof shall not constitute Events
of Default.
SECTION 8.04 Conditions to Legal Defeasance or Covenant Defeasance
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes and Subsidiary
Guarantees:
In order to exercise either Legal Defeasance or Covenant
Defeasance, as applicable:
(a) the Company must irrevocably deposit, or cause to be
deposited, with the Trustee, in trust, for the benefit of the Holders
of Notes and without retaining any legal interest in the corpus of such
trust, cash in U.S. dollars, Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay
and discharge, and which shall be applied by the Trustee to pay and
discharge, the principal of, premium, if any, and interest due on the
outstanding Notes on the Stated Maturity thereof or on the applicable
Redemption Date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular
Redemption Date;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been
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published by, the U.S. Internal Revenue Service a ruling or (B) since
the date of this Indenture, there has been a change in the applicable
U.S. federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders
of the outstanding Notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such Legal Defeasance
and will be subject to U.S. federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) or, insofar as Events of Default set forth in Section 6.01(8)
or 6.01(9) hereof are concerned, at any time in the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be satisfied until the expiration of such
period);
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and that the Trustee has a perfected
security interest in such trust funds for the ratable benefit of the
Holders of Notes;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied
with; and
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(i) the Trustee shall have received such other documents and
assurances as the Trustee shall reasonably require.
SECTION 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
(a) Subject to the provisions of the last paragraph of Section
4.03 hereof and to Section 8.06 hereof, all money and Government Securities
(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 hereof in respect of the Notes then outstanding shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, but such money and Government Securities need not be segregated from
other funds except to the extent required by law.
(b) The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or
Government Securities deposited pursuant to Section 8.04 hereof 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 Notes then outstanding.
This Section 8.05(b) shall survive the termination of this Indenture, and the
earlier removal or resignation of the Trustee.
SECTION 8.06 Repayment to Company
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Securities held by it as provided in Section
8.04 hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.07 Reinstatement
If the Trustee or Paying Agent is unable to apply any United
States dollars or Government Securities in accordance with Section 8.02 or 8.03
hereof, 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 Company's and any Guarantor's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof, 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 hereof, as the case may be; provided,
however, that if the Company or any Guarantor makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company or any
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Guarantor shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENTS
SECTION 9.01 Without Consent of Holders
Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 hereof;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(4) to provide security for the Notes;
(5) to add a Guarantor under this Indenture;
(6) to make any change that would provide any additional
rights or benefits to the Holders of Notes or that does not adversely
affect the legal rights hereunder of any Holder of Notes;
(7) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(8) to provide for the assumption of the Company's or any
Guarantor's obligations to the Holders of Notes; or
(9) to add covenants for the benefit of the Holders or to
surrender any right or power conferred upon the Company.
Upon the written request of the Company, accompanied by a
resolution of the Board of Directors of the Company authorizing the execution of
any such amended or supplemental Indenture, and upon receipt by the Trustee of
an Officers' Certificate and an Opinion of Counsel in compliance with Section
1.05 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
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obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 With Consent of Holders
Except as provided below in this Section 9.02, this Indenture
and the Notes may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing default or compliance with any provision of
this Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
Upon the request of the Company, accompanied by a resolution
of the Board of Directors of the Company authorizing the execution of any such
amended or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel in compliance with Section 1.05 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
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, 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, the Company shall mail to the Holders of each Note
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder of Notes affected, an amendment or waiver may not (with respect to
any Note held by a nonconsenting Holder):
(1) reduce the principal amount of the Notes whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the
Notes or, if the Company has become obligated to make a Change of
Control Offer or an Asset Sale Offer,
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amend, change or modify the obligation of the Company to make or
consummate such Change of Control Offer or Asset Sale Offer;
(3) reduce the rate of or change the time for payment of
interest on any Note;
(4) waive a Default or Event of Default in the payment of
principal of, premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in
such Note;
(6) make any change in Section 6.04 or 6.07 hereof;
(7) waive a redemption payment with respect to any Note;
(8) make any change in Section 12.04 or Article 10 hereof that
adversely affects the rights of any Holder of Notes or any change to
any other Section hereof that adversely affects the rights of any
Holder of Notes under Section 12.04 or Article 10 hereof (it being
understood that amendments to Section 4.09 hereof which may have the
effect of increasing the amount of Senior Debt that the Company and the
Guarantors may incur shall not, for purposes of this clause (8), be
deemed to be a change that adversely affects the rights of any Holder
of Notes under Section 12.04 or Article 10 hereof); or
(9) make any change in the foregoing amendment and waiver
provisions of this Article 9.
SECTION 9.03 Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to such Holder's Note or portion of such
Note by written notice to the Trustee received before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder
of Notes, except as provided in Section 9.02 hereof.
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SECTION 9.05 Notation on or Exchange of Notes
The Trustee may, but shall not be required to, place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment, supplement
or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign any amended or supplemental indenture, the Trustee shall be entitled to
receive, if requested, an indemnity satisfactory to it and to receive and,
subject to Section 7.01 hereof, shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company and the Guarantors in accordance with its terms. The
Company may not sign an amendment or supplemental Indenture until the Board of
Directors of the Company approves it.
ARTICLE 10.
SUBORDINATION
SECTION 10.01 Agreement to Subordinate
The Company agrees, and each Holder by accepting a Note
agrees, that the payment (by set-off or otherwise) of principal of, premium, if
any, and interest on the Notes (including with respect to any repurchases of the
Notes) shall be subordinated in right of payment, as set forth in this Article
10, to the prior payment in full in cash, or, at the option of the holders of
Senior Debt of the Company, in Cash Equivalents, of all Obligations in respect
of Senior Debt of the Company, whether outstanding on the date hereof or
hereafter incurred.
SECTION 10.02 Liquidation; Dissolution; Bankruptcy
Upon any distribution to creditors of the Company upon any
liquidation, dissolution or winding up of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, whether voluntary or involuntary, an assignment for the
benefit of creditors or any marshalling of the Company's assets and liabilities,
the holders of Senior Debt of the Company will be entitled
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to receive payment in full in cash, or, at the option of the holders of Senior
Debt of the Company, in Cash Equivalents, of all Obligations due or to become
due in respect of such Senior Debt (including interest after the commencement of
any such proceeding, at the rate specified in the applicable Senior Debt) before
the Holders of Notes will be entitled to receive any payment of principal of,
premium, if any, or interest on the Notes, and until all Obligations with
respect to Senior Debt of the Company are paid in full in cash, or, at the
option of the holders of Senior Debt of the Company, in Cash Equivalents, any
distribution of any kind or character to which the Holders of Notes would be
entitled shall be made to the holders of Senior Debt of the Company (except that
Holders of Notes may receive Permitted Junior Securities and payments made from
the trust described in Article 8 hereof).
SECTION 10.03 Default on Designated Senior Debt
The Company shall not make, directly or indirectly, (x) any
payment of principal of, premium, if any, or interest on the Notes (except in
Permitted Junior Securities or from the trust described in Article 8 hereof) or
(y) acquire any of the Notes for cash or property or otherwise or make any other
distribution with respect to the Notes 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, or interest on, any
Designated Senior Debt of the Company, or
(ii) any other default occurs and is continuing with respect
to Designated Senior Debt of the Company that permits holders of the
Designated Senior Debt of the Company as to which such default relates
to accelerate its maturity and the Trustee receives a notice of such
default (a "Payment Blockage Notice") from the holders of such
Designated Senior Debt of the Company.
The Company may and shall resume payments on the Notes:
(a) in the case of a payment default, upon the date on which
such default is cured or waived or otherwise has ceased to exist, and
(b) in the case of a nonpayment default, upon the earlier of
the date on which such nonpayment default is cured or waived or
otherwise has ceased to exist or 179 days after the date on which the
applicable Payment Blockage Notice is received, unless the maturity of
any Designated Senior Debt of the Company has been accelerated and such
acceleration remains in full force and effect.
No new period of payment blockage may be commenced unless and
until 360 days have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice. No nonpayment 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
nonpayment default shall have been waived for a period of not less than 90 days.
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The Company shall give prompt written notice to the Trustee of
any default in the payment of any Senior Debt of the Company or any acceleration
under any Senior Debt of the Company or under any agreement pursuant to which
Senior Debt of the Company may have been issued. Failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt of the
Company or the application of the other provisions provided in this Article 10.
SECTION 10.04 Acceleration of Notes
If the Company fails to make any payment on the Notes when due
or within any applicable grace period, whether or not on account of the payment
blockage provision referred to above, such failure shall constitute an Event of
Default and shall entitle the Holders of Notes to accelerate the Maturity
thereof. The Company shall promptly notify holders of Senior Debt of the Company
and the Guarantors if payment of the Notes is accelerated because of an Event of
Default.
SECTION 10.05 When Distribution Must be Paid Over
In the event that, notwithstanding the foregoing, the Trustee
or any Holder receives any payment of any principal of, premium, if any, or
interest on the Notes at a time when such payment is prohibited by Section 10.02
or 10.03 hereof, such payment shall be held by the Trustee or such Holder, in
trust for the benefit of, and shall be paid forthwith over and delivered to,
upon written request, the holders of Senior Debt of the Company as their
interests may appear or their representative under the indenture or other
agreement (if any) pursuant to which Senior Debt of the Company may have been
issued, as their respective interests may appear, for application to the payment
of all Obligations with respect to Senior Debt of the Company remaining unpaid
to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Debt.
Each Holder by his acceptance of a Note irrevocably agrees
that if any payment or payments shall be made pursuant to this Indenture and the
amount or total amount of such payment or payments exceeds the amount, if any,
that such Holder would be entitled to receive upon the proper application of the
subordination provisions of this Article 10, the Holder agrees that it will be
obliged to pay over the amount of the excess payment to the holders of Senior
Debt of the Person that made such payment or payments or their representative or
representatives, as instructed in a written notice of such excess payment,
within ten days of receiving such notice.
With respect to the holders of Senior Debt of the Company, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt of the Company 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 pay over or distribute to or on behalf of
Holders or the Company or any other Person, money or assets to which any
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holders of Senior Debt of the Company shall be entitled by virtue of this
Article 10, except if such payment is made as a result of the willful misconduct
or gross negligence of the Trustee.
SECTION 10.06 Notice by Company
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of principal
of, premium, if any, or interest on the Notes to violate this Article 10, but
failure to give such notice shall not affect the subordination of the Notes to
Senior Debt as provided in this Article 10.
SECTION 10.07 Subrogation
After all Senior Debt of the Company is paid in full and until
the Notes are paid in full in cash, Holders of Notes shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Debt of the Company to receive distributions
applicable to Senior Debt of the Company to the extent that distributions
otherwise payable to the Holders of Notes have been applied to the payment of
Senior Debt of the Company. A distribution made under this Article 10 to holders
of Senior Debt of the Company that otherwise would have been made to Holders of
Notes is not, as between the Company and Holders, a payment by the Company on
such Senior Debt.
If any payment or distribution to which the Holders of Notes
would otherwise have been entitled but for the provisions of this Article 10
shall have been applied, pursuant to the provisions of this Article 10, to the
payment of amounts payable under the Senior Debt of the Company, then and in
such case the Holders shall be entitled to receive from the holders of such
Senior Debt at the time outstanding any payments or distributions received by
such holders of such Senior Debt in excess of the amount sufficient to pay all
amounts payable under or respect of such Senior Debt in full; provided that such
payments or distributions shall be paid first pro rata to Holders of Notes that
previously paid amounts then pro rata to all Holders of Notes.
SECTION 10.08 Relative Rights
This Article 10 defines the relative rights of Holders of
Notes and holders of Senior Debt of the Company. Nothing in this Indenture
shall:
(1) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, and interest on the Notes in accordance
with their terms;
(2) affect the relative rights of Holders of Notes and
creditors of the Company other than their rights in relation to holders
of Senior Debt of the Company; or
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(3) prevent the Trustee or any Holder of Notes from exercising
its available remedies upon a Default or an Event of Default, subject
to the rights of holders and owners of Senior Debt of the Company to
receive distributions and payments otherwise payable to Holders of
Notes.
If the Company fails because of this Article 10 to pay
principal of, premium, if any, or interest on a Note on the due date, the
failure is nevertheless a Default or an Event of Default.
SECTION 10.09 Subordination May Not be Impaired by Company
No right of any holder of Senior Debt of the Company to
enforce the subordination of the Indebtedness evidenced by the Notes shall be
impaired by any act or failure to act by the Company or any Holder or by the
failure of the Company or any Holder to comply with this Indenture.
SECTION 10.10 Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to
holders of Senior Debt of the Company, the distribution may be made and the
notice given to their representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders of Notes shall be
entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Notes for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
SECTION 10.11 Rights of Trustee and Paying Agent
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless a Responsible Officer of the Trustee shall
have received at its Corporate Trust Office at least five Business Days prior to
the date of such payment written notice of facts that would cause the payment of
any principal of, premium, if any, or interest on the Notes to violate this
Article 10. Only the Company or a representative may give the notice. Nothing in
this Article 10 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
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SECTION 10.12 Authorization to Effect Subordination
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article 10, and appoints the Trustee to act as such Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, a representative of Designated Senior Debt of the
Company is hereby authorized to file an appropriate claim for and on behalf of
the Holders of Notes.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture
This Indenture shall be discharged and will cease to be of
further effect as to all Notes issued hereunder, except for Sections 7.07 and
8.05(b) hereof, which shall survive the satisfaction and discharge of
the Indenture, when either
(a) all such Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes
which have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust
and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or
(b) (i) all such Notes not theretofore delivered to
such Trustee for cancellation have become
due and payable by reason of the making of a
notice of redemption or otherwise or will
become due and payable within one year and
the Company or a Guarantor has irrevocably
deposited or caused to be deposited with
such Trustee as trust funds in trust an
amount of money sufficient to pay and
discharge the entire Indebtedness on such
Notes not theretofore delivered to the
Trustee for cancellation for principal,
premium, if any, and accrued interest to the
date of maturity or redemption;
(ii) no Default or Event of Default with respect
to this Indenture or the Notes shall have
occurred and be continuing on the date of
such deposit or shall occur as a result of
such deposit and such deposit will not
result in a breach or violation of, or
constitute a default under, any other
instrument to which the Company or a
Guarantor is a party or by which the Company
or a Guarantor is bound;
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(iii) the Company or a Guarantor has paid or
caused to be paid all sums payable by it
under this Indenture; and
(iv) the Company has delivered irrevocable
instructions to the Trustee under this
Indenture to apply the deposited money
toward the payment of such Notes at maturity
or the Redemption Date, as the case may be.
In addition, the Company must deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
Section 11.02 Application of Trust Money
Subject to the provisions of the last paragraph of Section
4.03 hereof, all money deposited with the Trustee pursuant to Section 11.01
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 11.01 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though such deposit had occurred pursuant to Section 11.01 hereof; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 12.
SUBSIDIARY GUARANTEES
Section 12.01 Subsidiary Guarantee
For value received, the Guarantors, jointly and severally,
hereby unconditionally guarantee to the Holders of the Notes and to the Trustee
the due and punctual payment of the principal of, premium, if any, and interest
(including interest accruing on or after the filing of a petition in bankruptcy
or reorganization relating to the Company, whether or not a claim for
post-filing interest is allowed in such proceeding) on, the Notes, and all other
amounts payable by the Company under the Notes and under this Indenture
(collectively, the "Guaranteed Obligations"), when and as the same shall become
due and payable, whether at the stated maturity or by declaration of
acceleration, call for redemption
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or otherwise, according to the terms of the Notes and this Indenture. Each
Subsidiary Guarantee pursuant to this Article 12 constitutes a guarantee of
payment in full when due and not merely a guarantee of collectibility.
Notwithstanding the foregoing, each Guarantor's liability under this Section
12.01 shall be limited to the maximum amount that would not result in such
Guarantor's Subsidiary Guarantee under this Section 12.01 constituting a
fraudulent conveyance or fraudulent transfer under applicable law.
Section 12.02 Obligation of the Guarantors Unconditional
Except as provided in Section 12.05 hereof, the obligations of
each Guarantor hereunder shall be as aforesaid absolute and unconditional, and
shall not be impaired, modified, released or limited by any occurrence or
condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of,
or any change in, any of the obligations and liabilities of the Company
contained in the Notes or this Indenture, (ii) any impairment, modification,
release or limitation of the liability of the Company or its estate in
bankruptcy, or any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of any applicable Bankruptcy Law,
as amended, or other statute or from the decision of any court, (iii) the
assertion or exercise by the Company, the Holders of Notes or the Trustee of any
rights or remedies under the Notes or this Indenture or their delay in or
failure to assert or exercise any such rights or remedies, (iv) the assignment
or the purported assignment of any property as additional security for the
Notes, including all or any part of the rights of the Company under this
Indenture, (v) the extension of the time for payment by the Company of any
payments or other sums or any part thereof owing or payable under any of the
terms and provisions of the Notes or this Indenture or of the time for
performance by the Company of any other obligations under or arising out of any
such terms and provisions or the extension or the renewal of any thereof, (vi)
the modification or amendment (whether material or otherwise) of any duty,
agreement or obligation of the Company set forth in this Indenture, (vii) the
voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all of the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
proceeding affecting, the Company, or any of the Guarantors or any of their
respective assets, or the disaffirmance of this Subsidiary Guarantee pursuant to
this Article 12 or the Notes or this Indenture in any such proceeding, (viii)
the release or discharge of the Company from the performance or observance of
any agreement, covenant, term or condition contained in any of such instruments
by operation of law, (ix) the unenforceability of the Notes or this Indenture or
any Subsidiary Guarantee pursuant to this Article 12, or (x) any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.
Section 12.03 Waiver Relating to Subsidiary Guarantees
Each Guarantor hereby (i) waives diligence, presentment,
demand of payment, filing of claims with a court in the event of the merger,
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company or to realize on any collateral, protest or notice with
respect to the Guaranteed Obligations and all demands
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whatsoever, (ii) acknowledges that any agreement, instrument or document
evidencing the Guaranteed Obligations may be transferred and that the benefit of
its obligations hereunder shall extend to each holder of any agreement,
instrument or document evidencing the Guaranteed Obligations without notice to
them, and (iii) covenants that its Subsidiary Guarantee pursuant to this Article
12 will not be discharged except pursuant to Section 12.05 hereof or by complete
payment and performance of the Guaranteed Obligations and of its Subsidiary
Guarantee pursuant to this Article 12.
Section 12.04 Subordination of Subsidiary Guarantees
Each Guarantee of a Guarantor under this Article 12 is
subordinate and junior in right of payment to the prior payment in full, in
cash, or at the option of the holders of Senior Debt of such Guarantor, in Cash
Equivalents, of all Senior Debt of such Guarantor, including any Guarantee
issued by such Guarantor that constitutes Senior Debt of such Guarantor, to the
same extent and in the same manner to which the Notes are subordinated pursuant
to Article 10 hereof to the Senior Debt of the Company, and all provisions of
Article 10 hereof applicable to the subordination of the Notes shall similarly
apply to the subordination of the Subsidiary Guarantees pursuant to this Article
12.
Section 12.05 Guarantors May Consolidate, etc., on Certain Terms
Subject to Section 12.06 hereof, no Guarantor (including any
existing or future Restricted Subsidiary that becomes an additional Guarantor)
may consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person whether or not affiliated with such Guarantor,
or sell, assign, transfer, convey or otherwise dispose of all or substantially
all of its properties or assets in one or more related transactions to another
Person, unless (i) the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is a
corporation organized and existing under the laws of the United States of
America, any state thereof, or the District of Columbia and expressly assumes
all the obligations of such Guarantor, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the Trustee, under the Notes and
this Indenture and (ii) immediately after giving effect to such transaction, no
Default or Event of Default exists. In connection with any consolidation or
merger contemplated by this Section 12.05, the Company shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation or
merger and such supplemental indenture comply with this Article 12 and that all
conditions precedent herein provided relating to such transaction have been
complied with.
The provisions of clause (i) of the preceding paragraph shall
not apply if the Person formed by or surviving the relevant consolidation or
merger or to which the relevant sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is the Company, a Guarantor or a Person
that is not, after giving effect to such transaction, a Restricted Subsidiary of
the Company.
Section 12.06 Release of Subsidiary Guarantee
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In the event of (i) a merger or consolidation to which a
Guarantor is a party, then the Person formed by or surviving such merger or
consolidation (if, after giving effect to such transaction, other than the
Company or a Restricted Subsidiary of the Company) shall be released and
discharged from the obligations of such Guarantor under its Subsidiary Guarantee
or (ii) a sale or other disposition (whether by merger, consolidation or
otherwise) of all of the Equity Interests of a Guarantor at the time owned by
the Company and its Restricted Subsidiaries to any Person that, after giving
effect to such transaction, is neither the Company nor a Restricted Subsidiary
of the Company, then such Guarantor shall be released and discharged from its
obligations under its Subsidiary Guarantee; provided that, in the case of each
of clauses (i) and (ii) above, (A) the relevant transaction is in compliance
with the terms of this Indenture, (B) immediately after giving effect to such
transaction, no Default or Event of Default shall exist and (C) the Person being
released and discharged shall have been released and discharged from all
obligations it might otherwise have under Guarantees of Indebtedness of the
Company or any of its Restricted Subsidiaries.
Upon any Guarantor ceasing to be a Guarantor pursuant to any
provision of this Indenture, at the request of the Company which request shall
be accompanied by an Officers' Certificate and an Opinion of Counsel, each
certifying that no Event of Default (or event or condition which with the giving
of notice or the passage of time would become an Event of Default) exists and is
continuing and that all conditions precedent herein provided relating to this
Section 12.06 have been complied with, the Trustee shall execute and deliver an
appropriate instrument evidencing any such release. Any Guarantor not released
from its obligations under its Guarantee shall remain liable for the full amount
of principal of, premium, if any, and interest on the Notes and for the other
obligations of any Guarantor under this Indenture as and to the extent provided
in this Indenture.
SECTION 12.07 Contribution of Guarantors
In the event that any Guarantor (such Guarantor being herein
referred to as the "Funding Party") shall make a payment under its Subsidiary
Guarantee pursuant to this Article 12, it shall be entitled to a contribution
from each other Guarantor (each, a "Contributor") in the amount of such
Contributor's pro rata share of the amount of such payment by such Funding Party
so long as exercise of such right does not impair the rights of Holders of Notes
under any Subsidiary Guarantee. The failure of a Contributor to discharge its
obligations under this Section 12.07 shall not affect the obligations of any
Guarantor under its Subsidiary Guarantee pursuant to this Article 12. The
obligations under this Section 12.07 shall be unaffected by any of the events
described in Section 12.02 or any comparable events pertaining to the Funding
Party, its Subsidiary Guarantee or the undertakings in this Section 12.07.
SECTION 12.08. Reinstatement of Subsidiary Guarantees
Each Guarantee pursuant to this Article 12 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 any of the Guaranteed
Obligations is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any
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Holder of Notes or by the Trustee, whether as a "voidable preference,"
"fraudulent conveyance," "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 Guaranteed
Obligations 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.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 13.02 Notices
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered by hand
delivery, by first-class mail (registered or certified, return receipt
requested), by facsimile or by overnight air courier guaranteeing next day
delivery, to the others' addresses as follows:
If to the Company or any Guarantor:
J. Baker, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
Attention: Philip G. Rosenberg
Chief Financial Officer
Telecopier No.: 781-821-4867
If to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001-2697
Attention: Global Trust Services
Telecopier No.: 212-946-8161
The Company, any Guarantor or the Trustee by notice to the
others may designate additional or different addresses of subsequent notices or
communications.
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All notices and communications (other than those sent to
Holders of Notes) shall be deemed to have been duly received: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is confirmed, if
sent by facsimile; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of Notes shall be
mailed by first-class mail, certified or registered, return receipt requested,
to his address shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Holder of Notes or any defect in it shall not
affect its sufficiency with respect to other Holders of Notes.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders of
Notes, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 13.03 Communication by Holders with Other Holders
Holders of Notes may communicate pursuant to TIA Section
312(b) with other Holders of Notes with respect to their rights under this
Indenture or the Notes. The Company, any Guarantor, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c). Upon
qualification of this Indenture under the TIA, the Trustee shall otherwise
comply with TIA Section 312(b).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company and/or any
Guarantor to the Trustee to take any action under this Indenture, the Company
and/or any Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 1.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any provided for in
this Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 1.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 13.05 Rules by Trustee and Agents
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The Trustee may make reasonable rules for action by or at a
meeting of Holders of Notes. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 13.06 Legal Holidays
In any case where any Interest Payment Date, any date
established for payment of Defaulted Interest pursuant to Section 2.12 hereof,
or any Maturity with respect to any Note shall not be a Business Day, then
(notwithstanding any other provisions of this Indenture or the Notes) payment of
interest or principal (and premium, if any) need not be made on such date but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date or date established for payment of
Defaulted Interest pursuant to Section 2.12 hereof or Maturity, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or date established for payment of Defaulted Interest
pursuant to Section 2.12 hereof or Maturity, as the case may be, to the next
succeeding Business Day.
SECTION 13.07 No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Notes or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
shall be part of the consideration for the issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the SEC that such a waiver is against public policy.
SECTION 13.08 Governing Law; Submission to Jurisdiction
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. BY THE EXECUTION AND DELIVERY
OF THIS INDENTURE, EACH OF THE COMPANY AND THE GUARANTORS SUBMITS TO THE
JURISDICTION OF ANY FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY SUIT
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 13.09 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
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SECTION 13.10 Successors and Assigns
All covenants and agreements in this Indenture and the Notes
by the Company and the Guarantors shall bind their respective successors and
assigns. All covenants and agreements in this Indenture by the Trustee shall
bind its successor and assigns.
SECTION 13.11 Severability
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable in any
jurisdiction, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other jurisdiction and 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.
SECTION 13.12 Counterpart Originals
This Indenture may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of them together shall
represent the same agreement.
SECTION 13.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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91
SIGNATURES
IN WITNESS WHEREOF, the undersigned have caused this Indenture
to be executed as of the date first above written.
J. BAKER, INC.
By:
-------------------------------
Name:
Title:
Guarantors:
WGS CORP.
JBI, INC.
JBI HOLDING CO., INC.
MORSE SHOE, INC.
BUCKMIN, INC.
ELM EQUIPMENT CORP.
ISAB, INC.
JARED CORPORATION
MORSE SHOE (CANADA) LTD.
MORSE SHOE INTERNATIONAL, INC.
WHITE CAP FOOTWEAR, INC.
SPENCER COMPANIES, INC.
THE CASUAL MALE, INC.
TCM HOLDING CO., INC.
TCMB&T, INC.
For each of the above:
By:
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
AS TRUSTEE
By:
-------------------------------
Name:
Title:
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EXHIBIT A
FORM OF NOTE
[Face of Note]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR PART FOR NOTES IN DEFINITIVE FORM,
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT 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 OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC") TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.](1)
J. BAKER, INC.
___% SENIOR SUBORDINATED NOTES DUE 2007
No. _____________ CUSIP NO.________
$_______________
J. Baker, Inc., a Massachusetts corporation, promises to pay
to Cede & Co. or registered assigns, the principal sum of _______________
Dollars on __________, 2007.
Interest Payment Dates: May __ and November __
Record Dates: May __ and November __
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
- ------------
(1) This paragraph should be included only if the Note is a Global Note.
A-1
93
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
Dated:
[Seal] J. BAKER, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
This is one of the ___% Senior
Subordinated Notes due 2007 referred to in
the within-mentioned Indenture:
THE CHASE MANHATTAN BANK,
as Trustee
By:
----------------------------
Authorized Signature
A-2
94
(Back of Note)
__% Senior Subordinated Notes due 2007
Capitalized terms used herein without definition that are
defined in the Indenture referred to below shall have the meanings assigned to
them in such Indenture.
1. Interest. J. Baker, Inc., a Massachusetts corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
___% per annum from the Issuance Date until maturity. The Company will pay
interest semiannually in arrears on May __ and November __ of each year (each an
"Interest Payment Date"), or if any such day is not a Business Day, on the next
succeeding Business Day. Interest on the Notes will accrue from the most recent
Interest Payment Date to which interest has been paid or, if no interest has
been paid, from the Issuance Date; provided that if there is no existing Default
in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be May __, 1998.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at the rate of the then applicable interest rate on
the Notes to the extent lawful; the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment. The Company shall make payments in
respect of the Notes on or before each due date of the principal of, premium, if
any, or interest on any Notes, by depositing with the Paying Agent a sum in
same day funds (or New York Clearing House funds if such deposit is made prior
to the date on which such deposit is required to be made) sufficient to pay the
principal, premium, if any, or interest so becoming due, or at the option of
the Company, payment of interest may be made by check mailed to the Holders of
Notes at their respective addresses set forth in the register of Holders of
Notes; provided that all payments on the Global Note and all payments of
interest on the Definitive Notes, the holders of which have given wire transfer
instructions to the Company or the Paying Agent at least ten Business Days
prior to the applicable payment date, shall be made by wire transfer in same day
funds. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, the Trustee will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may not act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of ________ __, 1997 (the "Indenture"), among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture
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by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the Indenture. Notwithstanding
anything to the contrary herein, the Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are general unsecured obligations of the Company limited to
$100,000,000 in aggregate principal amount and are, in the manner and to the
extent provided in Article 10 of the Indenture, subordinated in right of payment
to all existing and future Senior Debt of the Company.
5. Optional Redemption. Except as described below, the Notes
will not be redeemable at the Company's option prior to November __, 2002.
Thereafter, the Notes will be subject to redemption at any time at the option of
the Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon to the applicable
Redemption Date, if redeemed during the twelve-month period beginning on
November __ of the years indicated below:
YEAR PERCENTAGE
- ---- ----------
2002............................................................. . %
--------
2003............................................................. . %
--------
2004............................................................. . %
--------
2005 and thereafter.............................................. 100.0000%
Notwithstanding the foregoing, on or prior to November __,
2000, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of the Notes originally issued at a redemption price
of ______% of the principal amount thereof, plus accrued and unpaid interest
thereon, to the Redemption Date, with the net cash proceeds of one or more
Public Equity Offerings; provided that at least 65% of the aggregate principal
amount of Notes originally issued remain outstanding immediately after the
occurrence of such redemption; and provided, further, that such redemption shall
occur within 60 days after the date of the closing of any such Public Equity
Offering.
In addition, at any time prior to November __, 2002, the
Company may, at its option, redeem the Notes, in whole or in part, at a
Redemption Price equal to 100% of the principal amount plus the applicable
Make-Whole Premium, plus accrued and unpaid interest thereon to the Redemption
Date.
6. Mandatory Redemption. Except as referred to in Section 8
hereof, the Company shall not be required to make any mandatory redemption or
sinking fund payments with respect to the Notes.
7. Notice of Redemption. Notice of redemption shall be mailed
by first class mail, postage prepaid, at least 30 but not more than 60 days
before the Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. If any Note is to be redeemed in part only, the
notice of redemption that relates to such Note shall state the portion
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of the principal amount thereof to be redeemed. Notes called for redemption
become due on the date fixed for redemption. On and after the Redemption Date,
unless the Company defaults in making the redemption payments, interest ceases
to accrue on the Notes or portions thereof called for redemption.
8. Repurchase at Option of Holders. (a) Upon the occurrence of
a Change of Control, the Company shall make an offer (a "Change of Control
Offer") to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of the Notes at an offer price in cash (the "Change of Control
Payment") equal to 101% of the aggregate principal amount thereof plus accrued
and unpaid interest thereon to the date of purchase (the "Change of Control
Payment Date"). Notice of a Change of Control Offer shall be mailed by or on
behalf of the Company, with a copy to the Trustee or, at the option of the
Company and at the expense of the Company, by the Trustee within 30 days
following a Change of Control to each Holder of Notes containing the
information set forth in Section 4.17 of the Indenture. Holders of Notes that
are subject to an offer to purchase may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" on the
reverse side of this Note.
(b) When the aggregate amount of Excess Proceeds in connection
with Asset Sales by the Company exceeds $5.0 million, the Company shall make an
offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the date of purchase, in accordance with
the procedures set forth in Section 3.10 of the Indenture. The Company shall
commence an Asset Sale Offer with respect to Excess Proceeds within 30 days
following the date on which the aggregate amount of Excess Proceeds exceeds $5.0
million by mailing by first class mail the notice required pursuant to the terms
Section 3.10 of the Indenture, with a copy to the Trustee. To the extent that
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse side of this Note.
9. Denominations, Transfer, Exchange. The Notes are registered
form without coupons in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof. The transfer of Notes may be registered and Notes
may be exchanged only as provided in Article 2 of the Indenture. The Registrar
and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before
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a selection of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may
be treated as the owner of it for all purposes and neither the Company, the
Trustee nor any Agent shall be affected by notice to the contrary.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Notes), and,
subject to the terms of the Indenture any existing default or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Notes
(including without limitation, consents obtained in connection with a purchase
of, or a tender offer or exchange offer for, the Notes). Without the consent of
any Holder of Notes, the Indenture and the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to comply with Article 5 of the
Indenture to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide security for the Notes, to add a Guarantor under
the Indenture, to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the legal
rights under the Indenture of any Holder of Notes, to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA, to provide for the assumption of the Company's or any
Guarantor's obligations to the Holders of Notes or to add covenants for the
benefit of the Holders or to surrender any right or power conferred upon the
Company.
12. Events of Default and Remedies. Each of the following
constitutes an Event of Default: (i) default for 30 days in the payment when due
of interest on the Notes (whether or not prohibited by Article 10 of the
Indenture); (ii) default in payment when due (whether payable at maturity, upon
redemption or otherwise) of the principal of or premium, if any, on the Notes
(whether or not prohibited by Article 10 of the Indenture); (iii) failure by the
Company to comply with Section 3.10, 4.16, 4.17 or 5.01 of the Indenture; (iv)
failure by the Company or any Subsidiary of the Company for 30 days after
written notice from the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes to the Company to comply with any of its
other agreements in the Indenture or the Notes other than those referred to in
clauses (i), (ii) and (iii) above; (v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, which default (a) is
caused by a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results in
the acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $5.0
million or more; (vi) failure by the Company or any of its Restricted
Subsidiaries to pay final and non-
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appealable judgments aggregating in excess of $5.0 million, which judgments are
not paid, discharged or stayed for a period of 60 days after their entry; (vii)
except as permitted by the Indenture, any Subsidiary Guarantee shall be held in
any judicial proceeding to be unenforceable or invalid and such judgment has
become final or non-appealable or shall cease for any other reason to be in full
force and effect or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee; (viii) the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, pursuant to or within the meaning of any
Bankruptcy Law: (A) commences a voluntary case or proceeding, (B) consents to
the entry of an order for relief against it in an involuntary case or
proceeding, (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, (D) makes a general assignment for the
benefit of its creditors, or (E) admits in writing its inability generally to
pay its debts as the same become due; and (ix) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that (A) is for relief
against the Company, any Restricted Subsidiary that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, in an involuntary case or proceeding, (B) appoints a
Custodian of the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, or for all or a substantial part of the
property of the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, or (C) orders the liquidation of the
Company, any Restricted Subsidiary that is a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, and the order or decree contemplated in clause (A), (B) or (C) of
this clause (ix) remains unstayed and in effect for 60 consecutive days.
If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes and all other Obligations thereunder to be due and
payable immediately by notice in writing to the Company and the Trustee.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, any
Significant Subsidiary that is a Restricted Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal, premium, if
any, or interest) if it determines that withholding notice is in their interest.
13. Trustee Dealings with Company. The Chase Manhattan Bank,
the Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not
Trustee.
14. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes, the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of a Note by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
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15. Subordination. Each Holder by accepting a Note agrees that
the payment (by set-off or otherwise) of principal of, premium, if any, and
interest on the Notes (including with respect to any repurchases of the Notes)
is subordinated in right of payment, to the extent and in the manner provided in
Article 10 of the Indenture, to the prior payment in full in cash, or, at the
option of holders of Senior Debt of the Company, in Cash Equivalents, of all
Obligations in respect of Senior Debt of the Company, whether outstanding on the
date of the Indenture or thereafter incurred.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee.
17. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the 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).
18. Subsidiary Guarantees. Upon the terms and subject to the
conditions set forth in the Indenture, certain Subsidiaries of the Company named
in the Indenture have guaranteed the due and punctual payment of the principal
of, and premium, if any, and interest on, the Notes and all other amounts
payable by the Company under the Notes and the Indenture. Under certain
circumstances set forth in the Indenture, certain additional Subsidiaries of the
Company may become Guarantors. The obligations of each Guarantor under its
Subsidiary Guarantee are or will be subordinated in right of payment to Senior
Debt of such Guarantor to the same extent and in the same manner as the
obligations of the Company in respect of the Notes are subordinated in right of
payment to Senior Debt of the Company. Under certain circumstances set forth in
the Indenture, each Guarantor may be released from its Subsidiary Guarantee.
19. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Note Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes as a convenience to Holders of Notes.
No representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
20. Governing Law. This Note and the Indenture shall be
governed by and construed in accordance with the internal laws of the State of
New York, as applied to contracts made and performed entirely within the State
of New York, without regard to principles of conflict of laws.
21. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to: J. Baker,
Inc., 555 Turnpike Street, Canton, Massachusetts 02021, Attention: Philip G.
Rosenberg, Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________ as agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date: _______________________
Signature Guarantee:____________________________________________________________
NOTICE: Your Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, check the
appropriate box:
Section 4.16 / / Section 4.17 / /
If you want to have only part of this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state the
amount (in integral multiples of $1,000):
$________________
Date:_______________________
Signature:______________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:____________________
NOTICE: Your Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
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